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THE 2011 ACCELERATION OF THE DEBT WAS REVOKED BY THE 2017 REVOCATION OF THE ACCELERATION RENDERING THE 2018 FORECLOSURE ACTION TIMELY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the 2018 foreclosure action was timely because the 2011 acceleration of the debt was revoked in 2017: … [A]lthough the defendants demonstrated … the six-year statute of limitations began to run in July 2011, when the plaintiff accelerated the mortgage debt through its commencement of the 2011 action […]

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SUPREME COURT PROPERLY ANNULLED THE ELECTION BOARD’S DESIGNATION OF AN EARLY VOTING POLLING PLACE BECAUSE THE BOARD DID NOT DEMONSTRATE THE LOCATION MET THE ELECTION LAW REQUIREMENTS MANDATING A LOCATION ACCESSIBLE TO CITY RESIDENTS (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Garry, determined Supreme Court properly annulled the determination of the Rensselaer County Board of Elections designating an early voting polling pace pursuant to Election Law section 8-600. The 3rd Department also granted the motion to intervene in the Article 78 proceeding brought by the NAACP and […]

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THE DEFENDANT’S CONCLUSORY AFFIDAVIT BLAMING THE DEFAULT JUDGMENT ON HIS PRIOR ATTORNEY WAS NOT A SUFFICIENT BASIS FOR VACATING THE DEFAULT JUDGMENT IN THIS FORECLOSURE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant’s (Echevarria’s) affidavit blaming the default in this foreclosure action on his prior attorney was not sufficient to support vacating the default judgment: … [W]hile CPLR 2005 allows courts to excuse a default due to law office failure, it was not the Legislature’s intent to routinely excuse […]

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WHETHER A DELAY IN DIAGNOSIS AFFECTED PLAINTIFF’S PROGNOSIS IS USUALLY A JURY QUESTION; DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s expert raised questions of fact which precluded summary judgment in favor of defendant. The court noted that whether a delay in diagnosis affected prognosis is usually a question for the jury: “Summary judgment is not appropriate in a medical malpractice action where the parties adduce conflicting medical […]

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IN THE CONTEXT OF THIS COMPLICATED FORECLOSURE DECISION, THE 2ND DEPARTMENT EXPLAINED (1) WHEN EVIDENCE SUBMITTED IN REPLY CAN BE CONSIDERED AND (2) THE CRITERIA FOR THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE (SECOND DEPT).

The Second Department, reversing Supreme Court in this foreclosure action, addressed (1) when evidence presented in reply can be considered and (2) how to meet the criteria of the business records exception to the hearsay rule: Supreme Court … should have considered the Lee affidavit … . … [T]he defendant did not object to the […]

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WHEN IT IS ARGUED A NECESSARY PARTY WAS NOT SUED, SUMMARY JUDGMENT SHOULD NOT BE GRANTED ON THAT GROUND; RATHER THE PROCEDURE DESCRIBED IN CPLR 1001 (B) SHOULD BE FOLLOWED (SECOND DEPT).

The Second Department noted that a property owner, R.E. Dowling, was a necessary party in this dispute about the existence of easements and that the denial of summary judgment on that ground was proper pursuant to CPLR 1001 (b). The matter was remitted to determine whether the party can be summoned or whether the action […]

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IN THIS FORECLOSURE ACTION THE DEATH OF THE MORTGAGOR/PROPERTY OWNER DID NOT TRIGGER AN AUTOMATIC STAY BECAUSE THE MORTGAGOR/PROPERTY OWNER DIED INTESTATE AND THE ACTION COULD CONTINUE AGAINST THE DISTRIBUTEES WITHOUT THE APPOINTMENT OF A REPRESENTATIVE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the death of the mortgagor/property owner in this foreclosure action did not divest the court of jurisdiction because the mortgagor/property owner died intestate and the suit could continue against the distributees without the appointment of a representative: “Generally, the death of a party divests a court of […]

A SUBCONTRACTOR CAN BE LIABLE FOR A DANGEROUS CONDITION ON THE WORK SITE ONLY IF IT EXERCISED SUPERVISORY CONTROL OVER THE WORK SITE; THE LABOR LAW 200 CAUSE OF ACTION AGAINST THE SUBCONTRACTOR SHOULD HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant subcontractor’s (D’Onofrio’s) motion for summary judgment dismissing the Labor Law 200 cause of action should have been granted. D’Onofrio demonstrated it did not have supervisory control over the work site where plaintiff allegedly fell from defective stairs: Labor Law § 200 is a codification of the common-law […]

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DEFENDANTS PREVAILED IN A SUIT BY PLAINTFF COOPERATIVE PURSUANT TO A PROPRIETARY LEASE; THEREFORE DEFENDANTS WERE ENTITLED TO ATTORNEY’S FEES PURSUANT TO REAL PROPERTY LAW 234 EVEN THOUGH THE ISSUE WAS NOT RAISED IN A COUNTERCLAIM (SECOND DEPT).

The Second Department determined defendants, who prevailed in an action against them by plaintiff cooperative apartment corporation, was entitled to attorney’s fees pursuant to Real Property Law 234 even though that theory was not pled as a counterclaim: As the prevailing parties to the action commenced against them by the plaintiff pursuant to the proprietary […]

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ALTHOUGH THE DOCUMENTS SUBMITTED BY DEFENDANT IN THIS SLIP AND FALL CASE MAY HAVE MET THE CRITERIA FOR THE PUBLIC DOCUMENTS EXCEPTION TO THE HEARSAY RULE, THEY WERE INADMISSIBLE BECAUSE THEY WERE NOT AUTHENTICATED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the documentary evidence submitted by defendant (Maspeth) in support of its argument it did not create the depression in the roadway where plaintiff allegedly fell was inadmissible hearsay. Although the documents may have met the criteria for the public document exception to the hearsay rule, the documents were […]

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