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ALTHOUGH THE FORECLOSURE CAUSE OF ACTION WAS DISMISSED AFTER TRIAL BECAUSE THE BANK FAILED TO PROVE STANDING AND COMPLIANCE WITH RPAPL 1304, THE JUDGE SHOULD NOT HAVE, SUA SPONTE, CANCELLED AND DISCHARGED THE MORTGAGE, RELIEF DEFENDANT HAD NOT REQUESTED (SECOND DEPT).

The Second Department, reversing Supreme Court in this foreclosure action, determined the judge did not have the power to sua sponte cancel and discharge the mortgage. After trial, the foreclosure cause of action was dismissed because the bank failed to demonstrate standing to foreclose and failed to demonstrate compliance with RPAPL 1304: The Supreme Court […]

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HERE THE “SOPHISTICATED PARTIES” TO THE COMMERCIAL LEASE PROPERLY USED INSURANCE TO ALLOCATE THE RISK OF LIABILITY TO THIRD PARTIES; THEREFORE THE TENANT CAN BE LIABLE TO THE PLAINTIFF FOR THE PROPERTY OWNER’S NEGLIGENCE IN THIS SIDEWALK SLIP AND FALL CASE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the tenant (Beachbum Tanning) was obligated to indemnify the property owner (RJJR Corp) for the property owner’s negligence in this sidewalk (raised flag) slip and fall case. The “sophisticated parties” to the commercial lease had properly allocated the risk of liability to third parties through insurance: “Pursuant to […]

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THE DENIAL OF AN AREA VARIANCE FOR A GARAGE WHICH WAS BELOW THE MAXIMUM HEIGHT BUT WAS FOUR FEET HIGHER THAN THE RESIDENCE WAS DEEMED “IRRATIONAL” (THIRD DEPT).

The Third Department, reversing Supreme Court, over a two-justice dissent, determined the denial of petitioner’s request for an area variance for a garage which was four feet higher than the residence was irrational: The relevant question presented by petitioner’s application was whether a four-foot area variance would be out of character with the surrounding neighborhood […]

THE FORECLOSURE ABUSE PREVENTION ACT (FAPA) APPLIES RETROACTIVELY; THE FORECLOSURE ACTION HERE IS THEREFORE TIME-BARRED (THIRD DEPT).

The Third Department, reversing Supreme Court, reiterated that the Foreclosure Abuse Prevention Act (FAPA) applies retroactively. Here the foreclosure action was deemed time-barred because the bank’s attempt to stop the running of the statute of limitations by de-accelerating the debt was precluded by FAPA: … [T]his action is time-barred, and must be dismissed. “[T]he six-year […]

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IN A FORECLOSURE CONTEXT, THE BANK, WHEN MOVING FOR A DEFICIENCY JUDGMENT, GETS TWO CHANCES TO DEMONSTRATE THE VALUE OF THE PROPERTY; IF THE FIRST SUBMISSION IS DEEMED INADEQUATE, THE BANK MUST BE ALLOWED TO TRY AGAIN (FIRST DEPT).

The First Department, reversing Supreme Court, determined the bank in this foreclosure action should have been given a second opportunity to present evidence of the value of the property for purposes of a deficiency judgment: A lender in a foreclosure action moving for a deficiency judgment “bears the initial burden of demonstrating, prima facie, the […]

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THE VICTIM OF THE ASSAULT AND ATTEMPTED ROBBERY COULD NOT IDENTIFY THE DEFENDANT; THE VIDEO OF THE INCIDENT DIDN’T HELP; DEFENDANT WAS ARRESTED BECAUSE HE WAS DEPICTED IN SURVEILLANCE VIDEO NEAR THE SCENE WEARING DISTINCTIVE RIPPED AND PATCHED PANTS WHICH WERE NOT MENTIONED BY THE VICTIM OR DEPICTED IN THE INCIDENT VIDEO; THE ARREST WAS NOT SUPPORTED BY PROBABLE CAUSE; INDICTMENT DISMISSED AFTER GUILTY PLEA (FIRST DEPT).

The First Department, reversing defendant’s conviction by guilty plea and dismissing the indictment, in a full-fledged opinion by Justice Manzanet-Daniels, determined defendant was arrested in the absence of probable cause requiring suppression of seized evidence and defendant’s statements. Several arguments raised by the People on appeal were not considered because the arguments were not made […]

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IF THE STATUTE OF LIMITATIONS RUNS OUT ON A SATURDAY, PLAINTIFF HAS UNTIL THE FOLLOWING MONDAY TO COMMENCE THE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the dental malpractice action was timely commenced. The last day of the statute of limitations fell on a Saturday and General Construction Law section 25-a (1) provided an extension until the following Monday: General Construction Law § 25-a(1) provides that when the period of time within which an […]

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PLAINTIFF WAS TAKING DOWN A PLYWOOD FENCE WHEN A PIECE OF PLYWOOD FELL AND STRUCK HIM ON THE HEAD; PLAINTIFF DID NOT SUBMIT SUFFICIENT PROOF THE INCIDENT WAS ELEVATION-RELATED; HIS MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff was not entitled to summary judgment on the Labor Law 240(1) cause of action. Plaintiff was tasked with taking down a plywood fence when a piece of plywood struck his head. The Second Department held that plaintiff did not present sufficient evidence demonstrating the incident was elevation-related: […]

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THE EXCLUSIONARY PROVISIONS IN THIS FIRE INSURANCE POLICY WERE AMBIGUOUS AND MUST THEREFORE BE CONSTRUED AGAINST THE INSURER; PLAINTIFF IS ENTITLED TO COVERAGE FOR THE FIRE DAMAGE DESPITE THE UNAUTHORIZED OCCUPANTS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the exclusionary provisions of the fire insurance policy were ambiguous and therefore must be construed in favor of the insured. At the time of the fire unauthorized occupants were living in the building and the insurer disclaimed coverage on that ground: Here, the disputed exclusionary provisions read as […]

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THERE IS A QUESTION OF FACT WHETHER PLAINTIFF WAS DEFENDANT’S EMPLOYEE SUCH THAT THE PROTECTIONS OF THE LABOR LAW APPLY IN THIS LADDER-FALL CASE; DEFENDANT AGREED TO FIX PLAINTIFF’S CAR IN RETURN FOR PLAINTIFF’S FIXING THE ROOF OF DEFENDANT’S REPAIR SHOP (SECOND DEPT).

The Second Department, reversing Supreme Court, determined there was a question of fact whether the relationship between defendant Houghtaling and plaintiff was an “employment” relationship such that the Labor Law applies to plaintiff’s fall from a ladder. Houghtaling agreed to repair plaintiff’s car in return for plaintiff’s seal-coating the roof of defendant’s automotive repair ship. […]

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