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PETITION TO STAY ARBITRATION IN THIS UNDERINSURED MOTORIST PROCEEDING WAS SERVED AFTER THE 20-DAY STATUTORY PERIOD FOR SERVICE AND WAS NOT SERVED IN THE MANNER REQUIRED BY THE STATUTE (CPLR 7503(c)); THEREFORE THE APPLICATION TO STAY ARBITRATION WAS JURISDICTIONALLY DEFECTIVE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the insurer’s (State Farm’s) notice and petition to stay arbitration was not served within the required 20 days and was not properly served. The petition therefore should have been dismissed: … [T]he insured, Joyce Reid, sent State Farm Insurance Company (hereinafter State Farm) a demand for supplemental underinsured […]

EDUCATIONAL NEGLECT FINDING FOR EIGHT-YEAR-OLD WAS SUPPORTED; BUT THE DERIVATIVE EDUCATIONAL NEGLECT FINDING FOR THE FOUR-MONTH-OLD WAS NOT (SECOND DEPT).

The Second Department, reversing (modifying) Family Court, held the educational neglect finding was supported for the eight-year-old child, but the derivative educational neglect finding for four-month-old child was not supported: The record demonstrates that the older child was absent 48 days and was late 78 other days during the 2016-2017 school year. The record also […]

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ALTHOUGH PETITIONER ULTIMATELY PREVAILED AND WAS PROVIDED WITH THE NASSAU COUNTY TRAFFIC AND PARKING VIOLATIONS AGENCY (TPVA) RECORDS PURSUANT TO ITS FREEDOM OF INFORMATION LAW (FOIL) REQUEST, BECAUSE THE TPVA PERFORMS EXEMPT ADJUDICATORY FUNCTIONS AS WELL AS NON-EXEMPT PROSECUTORIAL FUNCTIONS THE COUNTY HAD A REASONABLE BASIS FOR INITIALLY WITHHOLDING THE RECORDS; $30,000 ATTORNEY’S-FEES AWARD REVERSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that, although the petitioner ultimately prevailed in its Freedom of Information Law (FOIL) action, it was not entitled to attorney’s fees. The petitioner sought records re: Nassau County’s photo speed monitoring system. The records were held by the Nassau County Traffic and Parking Violations Agency (TPVA). Initially the request […]

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LABOR LAW 200 CAUSE OF ACTION BASED UPON A DANGEROUS CONDITION PROPERLY SURVIVED SUMMARY JUDGMENT, APPELLANTS DID NOT DEMONSTRATE A LACK OF ACTUAL OR CONSTRUCTIVE NOTICE OF THE CONDITION; JUDGE SHOULD NOT HAVE, SUA SPONTE, DENIED A MOTION ON A GROUND NOT RAISED BY A PARTY (SECOND DEPT).

The Second Department determined the Labor Law 200 and common-law negligence causes of action properly survived summary judgment. The Second Department noted the court should not have, sua sponte, denied appellants’ motion on the ground the deposition transcripts were inadmissible because that issue was not raised. Plaintiff was working in the bottom of a hole which was […]

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THE ACTION TO ENFORCE THE POSTNUPTIAL AGREEMENT WAS GOVERNED BY THE THREE-YEAR STATUTE OF LIMITATIONS IN THE DOMESTIC RELATIONS LAW, NOT THE SIX-YEAR CONTRACT STATUTE OF LIMITATIONS IN CPLR 213; THEREFORE THE ACTION WAS TIME-BARRED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the statute of limitations with respect to the enforcement of a postnuptial agreement is that provided for in Domestic Relations Law 250, not the six-year statute of limitations for contract actions generally: … [T]he six-year statute of limitations that pertains to breach of contract causes of action (see […]

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REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL) 1304 NOTICE REQUIREMENTS NOT MET; PLAINTIFF BANK’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank did not demonstrate compliance with the notice provisions of Real Property Actions and Proceedings Law (RPAPL) 1304. Therefore plaintiff’s motion for summary judgment in this foreclosure action should not have been granted: … [T]he plaintiff failed to establish its entitlement to judgment as a matter of […]

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THE COMPLAINT ADEQUATELY ALLEGED THE TOLLING OF THE STATUTE OF LIMITATIONS PURSUANT TO THE CONTINUOUS REPRESENTATION DOCTRINE AND THE EXISTENCE OF THE FUNCTIONAL EQUIVALENT OF PRIVITY BETWEEN PLAINTIFF AND THE DEFENDANT ARCHITECT; SUPREME COURT REVERSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the complaint alleging architectural malpractice should not have been dismissed pursuant to CPLR 3211. Plaintiff leased the first floor of a building to operate a pizza restaurant. Plaintiff hired a contractor which in turn hired an architect for the heating, ventilation and air conditioning (HVAC) design. The gas […]

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PEOPLE’S REQUEST FOR AN UPWARD DEPARTURE IN THIS SORA RISK ASSESSMENT PROCEEDING SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the People’s request for an upward department in this SORA risk assessment proceeding should not have been granted: The Supreme Court should not have granted the People’s request for an upward departure. “A departure from the presumptive risk level is generally the exception, not the rule. Where the […]

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SUPREME COURT’S DENIAL OF DEFENDANT’S PETITION TO MODIFY HIS SORA RISK LEVEL CLASSIFICATION WITHOUT HOLDING A HEARING VIOLATED THE CORRECTION LAW (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the failure to hold a hearing on defendant’s petition to modify his risk level classification violated Correction Law 168-o(4): … [T]he defendant moved pursuant to Correction Law § 168-o(2) for a downward modification of his risk level classification under the Sex Offender Registration Act … . The Supreme […]

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