The Second Department determined the crack in the concrete schoolyard where infant plaintiff allegedly tripped and fell was trivial as a matter of law. Infant plaintiff was running a sprint in an after-school program when he fell. The court noted that plaintiffs raised a “feigned issue of fact” in opposition to the defendants’ motion for […]
The Second Department, reversing Supreme Court, determined the foreclosure action should have been dismissed as untimely. The debt was accelerated with the first foreclosure action was commenced in 2008, starting the running of the six-year statute of limitations. The discontinuing of the that action did not revoke the acceleration: “[A] lender’s mere act of discontinuing […]
The Second Department, reversing County Court, determined defendant was entitled to a hearing on his motion to vacate his conviction by guilty plea based on ineffective assistance of counsel. Defendant raised a question whether he should have been informed about the an affirmative defense to robbery first degree, i.e., that the object displayed during the […]
The Second Department found defendant’s grand-larceny-by-false-representation conviction was against the weight of the evidence. There was no evidence defendant received any additional money after making the alleged false representation and no evidence defendant intended to appropriate the funds at the time the alleged false representation was made: … [T]he complainant testified that she was unable […]
The Second Department, reversing Family Court, determined the custody arrangements set forth in the settlement agreement should not have been modified in the absence of a hearing and the modification should not have been based upon inadmissible evidence not tested by either party: … [T]he Supreme Court should not have granted, without a hearing, that […]
The Second Department, reversing the Blue Point Fire Department Board of Wardens’ removal from membership of a volunteer firefighter, determined the firefighter should have been afforded a hearing pursuant to General Municipal Law 209-L: “Pursuant to General Municipal Law § 209-l, volunteer firefighters cannot be removed from office or membership for incompetence or misconduct, except for […]
The Second Department, reversing Family Court, determined the maternal grandparent had standing to petition for visitation after mother died. Because the grandparent had standing, Family Court should have held a “best interests” hearing rather than precluding the presentation of evidence and granting father’s petition to deny the petition: … [I]t is undisputed that the maternal […]
The Second Department, reversing Supreme Court, determined the arbitrator’s award, reinstating the employees to their former positions as care providers at a nursing home, violated public policy. The employees were fired and indicted for allegedly ignoring an alarm indicating a resident on a ventilator was in distress: … [T]he record reflects that after the employees […]
The Second Department, reversing Supreme Court, determined plaintiff’s request for leave to file a late notice of claim in this sidewalk slip and fall case should have been granted. Although the excuse for filing late was not adequate, the city had timely knowledge of the nature of the claim: The unusual occurrence report prepared and […]
The Second Department determined the landlord defendants were entitled to summary judgment dismissing the complaint by a tenant stemming from a robbery by another tenant and others. Defendant landlord demonstrated it did not have notice of any prior similar criminal activity in the building: A landlord is not required to insure the safety of tenants […]
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