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THE CONDITIONAL ORDER OF DISMISSAL DIRECTING THE FILING OF A NOTE OF ISSUE DID NOT MEET THE REQUIREMENTS OF CPLR 3216; THE ACTION SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined the conditional order of dismissal directing plaintiff to file a note of issue did not meet the statutory requirements of CPLR 3216 and, therefore, the action should not have been dismissed: The conditional order of dismissal directing plaintiff to file a note of issue by February 28, 2019 […]

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PLAINTIFF STATED CAUSES OF ACTION FOR VIOLATION OF LABOR LAW 193, IMPROPER DEDUCTIONS FROM WAGES, AND LABOR LAW 215, TERMINATION FOR COMPLAINING OF THE IMPROPER DEDUCTIONS (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff had stated causes of action for violation of Labor Law 193 by making improper deductions from earned wages, and Labor Law 215, by firing plaintiff after she complained of unlawful deductions: … [P]laintiff alleged that defendants “impermissibly and unlawfully made deductions from [her] wages including the operating […]

ALLEGED MISHANDLING OF DECEDENT’S BODY BEFORE PLAINTIFF TOOK CUSTODY OF IT SUPPORTED THE RIGHT OF SEPULCHER CLAIM (FIRST DEPT).

The First Department, over a dissent, determined the “right of sepulcher” cause of action properly survived summary judgment: The record demonstrates that there are factual issues as to whether defendant improperly dealt with the decedent’s body. In his deposition testimony, plaintiff described viewing the body of the decedent, his father, in a closet-like room where […]

SUBPOENAS RELATING TO CROSS CLAIMS SHOULD NOT HAVE BEEN QUASHED (FIRST DEPT).

The First Department, reversing Supreme Court, determined subpoenas that related to cross claims should not have quashed [Defendant’s] motion to quash the nonparty subpoenas … to obtain information related to … cross claims … (CPLR 3101[a][4]) should have been denied. Although the subpoenaed information was unrelated to the interpleader action, in New York, cross claims […]

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THE EVIDENCE DID NOT DEMONSTRATE THE DEVELOPMENT OF A PARENT-CHILD RELATIONSHIP BETWEEN RAYMOND F AND THE CHILD; THEREFORE RAYMOND F’S REQUEST FOR A GENETIC MARKER TEST SHOULD NOT HAVE BEEN DENIED (THIRD DEPT).

The Third Department, reversing Family Court, determined Raymond F’s request for a genetic marker test should not have been denied. The evidence did not demonstrate a parent-child relationship such that Raymond F should be equitably estopped from denying paternity: The application of the doctrine of equitable estoppel does not involve the equities between adult participants […]

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THE EXAMINATION UNDER OATH (EUO) WAS SCHEDULED BEFORE THE INSURER RECEIVED A CLAIM FORM; THEREFORE THE INSURER DID NOT HAVE TO DEMONSTRATE COMPLIANCE WITH THE NOTICE REQUIREMENTS OF 11 NYCRR 65-3.5 TO BE ENTITLED TO A DEFAULT DECLARATORY JUDGMENT; THE UNDERLYING TRAFFIC ACCIDENT WAS FOUND TO HAVE BEEN STAGED AND CLAIMANT FAILED TO APPEAR AT SCHEDULED EOU’S (FIRST DEPT).

The First Department noted that where an examination under oath (EUO) is scheduled before the insurance company’s of a claim form, the insurer need not submit the proof of mailing in compliance with 11 NYCRR 65-3.5 to obtain a default declaratory judgment. It was determined the underlying traffic accident was staged and claimant did not […]

THE CONTRACTOR HIRED TO CLEAN THE HOTEL LOBBY LAUNCHED AN INSTRUMENT OF HARM BY POURING CLEANING SOLUTION ON THE FLOOR AND FAILING TO PUT DOWN MATS OR POST WARNINGS; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AGAINST THE CONTRACTOR IN THIS SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined the defendant cleaning contractor launched an instrument of harm by pouring cleaning solution on the floor in this slip and fall case. Therefore plaintiff was entitled to summary judgment against the contractor: Plaintiff alleged [the cleaning contractor] poured a large amount of cleaning solution onto the lobby’s […]

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THE ARBITRATOR EXCEEDED HIS AUTHORITY UNDER THE COLLECTIVE BARGAINING AGREEMENT BY DISMISSING TWO CHARGES BECAUSE OF THEIR PUPORTED FACIAL DEFICIENCIES AND FAILING TO ASSESSS THE EVIDENCE IN SUPPORT OF THE CHARGES (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the arbitrator’s dismissal of two of the disciplinary charges against a corrections officer (Norde) based solely on alleged defects in the charges, as opposed to the relevant evidence, exceeded the arbitrator’s authority under the collective bargaining agreement (CBA): … [R]espondent complied with the CBA by pleading in the […]

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WHERE THE ORDER DISMISSING A COMPLAINT PURSUANT TO CPLR 3215 AFTER A SEVEN-YEAR DELAY IN SEEKING A DEFAULT JUDGMENT DID NOT SPECIFICALLY SET FORTH CONDUCT DEMONSTRATING A GENERAL PATTERN OF DELAY THE SAVINGS CLAUSE OF CPLR 205 APPLIES AND THE ACTION MAY BE RE-COMMENCED WITHIN SIX MONTHS OF THE DISMISSAL (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the initial foreclosure action was not dismissed for failure to prosecute and, therefore, the savings provision of CPLR 205 applied. The court noted that the seven-year delay in seeking a default judgment which resulted in the dismissal did not constitute “neglect to prosecute:” For purposes of the savings […]

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THE RECENT US SUPREME COURT CASE HOLDING THAT A STATE MUST CONSENT TO SUIT AGAINST IT IN A SISTER STATE DID NOT AFFECT THE DOCTRINE OF “WAIVER OF SOVEREIGN IMMUNITY;” HERE NEW JERSEY WAIVED THE DOCTRINE BY PARTICIPATING IN THE FIRST TRIAL OF THIS TRAFFIC ACCIDENT CASE (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Oing, in a comprehensive discussion which cannot be fairly summarized here, determined the defendant, New Jersey Transit, had waived sovereign immunity by participating in the first trial of this traffic accident case. The fact that, since the first trial, the US Supreme Court ( the Hyatt […]

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