The First Department, in affirming neglect findings based upon leaving the children unattended in a car and in the bathtub, determined that the evidence did not support the neglect finding based upon the condition of the home: The only evidence that respondents failed to maintain the home in a sanitary condition was the caseworker’s testimony about […]
The First Department, reversing Supreme Court, determined defendant was not entitled to summary judgment in this slip and fall case because it did not demonstrate when the stairway where plaintiff slipped and fell was last cleaned or inspected: Defendant did not demonstrate that it lacked constructive notice of the grease as it failed to show […]
The Court of Appeals, in a full-fledged opinion by Judge Wilson, reversing the Appellate Term and overruling precedent from 1954, over a two-judge dissent and an additional dissent, determined the misdemeanor complaint and the information to which the complaint was converted should not have been amended to correct wrong dates. The Criminal Procedure Law does […]
The Second Department, reversing the Family Court’s order of protection imposed after a finding appellant had committed a family offense, determined the finding was based upon inadmissible hearsay. The hearsay exception in Article 10 of the Family Court Act does not apply to family offense (Article 8) proceedings: In a family offense proceeding, “[o]nly competent, […]
The Second Department, reversing Supreme Court, determined the defendants’ motion for summary judgment in this medical malpractice should not have granted because plaintiffs’ expert’s affidavit relied on facts not in the record: … [W]e disagree with the Supreme Court’s determination that the affirmation of the plaintiffs’ expert, submitted in opposition to the motion, was sufficient […]
The Second Department noted that ordinarily the only way to vacate a judgment entered by the filing of an affidavit of confession of judgment is a plenary action. However, if, as here, the ground for vacating the judgment is the lack of subject matter jurisdiction, a motion to vacate is proper. Here, although the motion […]
The Second Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment in this foreclosure action should not have been granted. Plaintiff did not demonstrate compliance with the notice provisions of RPAPL 1304 and the mortgage: … [T]he evidence submitted in support of the motion failed to establish, prima facie, the plaintiff’s strict compliance with […]
The Second Department, reversing Supreme Court in this foreclosure action, determined plaintiff (CV) did not provide the proof required by Real Property Actions and Proceedings Law (RPAPL) 1304: The version of RPAPL 1304(2) as it existed at the time this action was commenced, provided that, “[t]he notices required by this section shall contain a current […]
The Second Department, reversing Supreme Court, determined granting the motion to set aside the verdict in this personal injury trial violated the binding summary jury trial stipulation which was entered into pursuant to Richmond County Summary Jury Trial Rules: The plaintiff commenced this action to recover damages for personal injuries she allegedly sustained in an […]
The Second Department, reversing (modifying) Supreme Court in this divorce proceeding, determined Supreme Court should not have deviated form the temporary spousal maintenance formula without making a finding the formula resulted in an unjust or inappropriate amount: “The formula to determine temporary spousal maintenance that is outlined in Domestic Relations Law § 236(B)(5-a)(c) is intended […]
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