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DEFENDANT DID NOT DEMONSTRATE WHEN THE STAIRWAY HAD LAST BEEN CLEANED OR INSPECTED IN THIS SLIP AND FALL CASE; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT). ​

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 […]

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MISDEMEANOR COMPLAINTS AND INFORMATIONS CANNOT BE CORRECTED BY AMENDMENT; RATHER A SUPERSEDING INSTRUMENT SUPPORTED BY A SWORN STATEMENT WITH THE CORRECT FACTS MUST BE FILED; THE ISSUE WAS NOT WAIVED BY DEFENDANT’S GUILTY PLEA TO THE AMENDED INSTRUMENT (CT APP).

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 […]

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THE HEARSAY EXCEPTION IN ARTICLE 10 OF THE FAMILY COURT ACT DOES NOT APPLY IN ARTICLE 8 FAMILY OFFENSE PROCEEDINGS; ORDER OF PROTECTION REVERSED (SECOND DEPT).

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, […]

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PLAINTIFFS’ EXPERT’S AFFIDAVIT WAS CONCLUSORY AND SPECULATIVE AND RELIED ON FACTS NOT IN THE RECORD; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION SHOULD HAVE BEEN GRANTED (SECOND DEPT).

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 […]

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ALTHOUGH VACATING A JUDGMENT STEMMING FROM A CONFESSION OF JUDGMENT MUST ORDINARILY BE ACCOMPLISHED BY BRINGING A PLENARY ACTION, A MOTION TO VACATE IS APPROPRIATE WHERE IT IS ALLEGED THE COURT WHICH ENTERED THE JUDGMENT DID NOT HAVE SUBJECT MATTER JURISDICTION; HERE THE MOTION TO VACATE WAS THE CORRECT VEHICLE BUT THE MOTION WAS PROPERLY DENIED ON THE MERITS (SECOND DEPT).

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 […]

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PLAINTIFF DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE PROVISIONS OF RPAPL 1304 AND THE MORTGAGE; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

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 […]

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PLAINTIFF DID NOT DEMONSTRATE STRICT COMPLIANCE WITH RPAPL 1304 IN THIS FORECLOSURE ACTION; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

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 […]

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THE MOTION TO SET ASIDE THE VERDICT AS INCONSISTENT AFTER IT WAS DEEMED A DEFENSE VERDICT VIOLATED THE BINDING SUMMARY TRIAL STIPULATION; THE MOTION TO SET ASIDE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

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 […]

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SUPREME COURT SHOULD NOT HAVE DEVIATED FROM THE FORMULA FOR DETERMINING TEMPORARY SPOUSAL MAINTENANCE IN THIS DIVORCE PROCEEDING WITHOUT MAKING A FINDING THAT USING THE FORMULA WOULD RESULT IN AN UNFAIR AMOUNT (SECOND DEPT).

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 […]

DEFENDANTS’ DID NOT DEMONSTRATE AS A MATTER OF LAW THAT THE ASSUMPTION OF THE RISK DOCTRINE APPLIED TO PLAINTIFF’S USE OF DEFENDANTS’ HOVER BOARD IN DEFENDANTS’ DRIVEWAY; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants did not demonstrate as a matter of law that  the assumption of the risk doctrine applied to plaintiff’s use of defendants’ hover board in defendants’ driveway. Plaintiff was injured falling off the hover board: Under the doctrine of primary assumption of risk, a voluntary participant in a sporting or […]

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