The Second Department, reversing Supreme Court, determined the judge should not have, sua sponte, granted relief that was not asked for by the plaintiff. Plaintiff sought cancellation and discharge of a mortgage pursuant to Real Property Actions and Proceedings Law (RPAPL) 1501(4). The judge cancelled the mortgage and the note: “The court may grant relief […]
The Second Department noted that defendant’s conviction of course of sexual conduct against a child in the first degrees must be vacated as a lesser included offense: … [T]he defendant’s conviction of course of sexual conduct against a child in the first degree under Penal Law § 130.75(1)(a) must be vacated and that count of […]
The Second Department, reversing Supreme Court, determined a stipulation of discontinuance executed by the plaintiff’s then attorney, and filed after plaintiff’s change-of-attorney stipulation was filed, was valid and enforceable. Plaintiff’s change-of-attorney stipulation was not signed by an agent or representative of the plaintiff: ” [A]n attorney of record in an action may only withdraw or […]
The Second Department, holding the appeal and remitting the matter, noted that the suppression court’s failure to provide the basis for its denial of defendant’s suppression motion precluded determination of the appeal: The defendant’s appeal from the order must be dismissed, as no appeal lies, as of right or by permission, from an order denying […]
The Second Department, reversing Supreme Court, determined there was a question of fact whether the sidewalk defect which allegedly caused plaintiff to fall was depicted on the Big Apple map. Therefore the question whether the city had written notice of the defect was for the jury: Administrative Code of the City of New York § […]
The Second Department, in a full-fledged opinion by Justice Scheinkman, determined defendant’s waiver of appeal was not enforceable for two reasons: (1) the waiver was demanded by the judge, not the People; and (2) the waiver was demanded after the guilty plea and the sentence promise (therefore defendant did not receive a material benefit from […]
The Second Department noted that the two robbery third degree counts were concurrent inclusory counts of the two robbery second degree counts and must be dismissed: The two counts of robbery in the third degree were concurrent inclusory counts of the two counts of robbery in the second degree (see CPL 300.30[4]; People v Hutson, 43 AD3d […]
The Second Department, reversing Supreme Court, determined plaintiff’s expert’s affirmation raised a question of fact in this failure-to-diagnose medical malpractice case, even though the affirmation dealt with an area of medicine outside of the expert’s area of practice (general surgery): … [T]he plaintiffs’ expert’s affirmation was not lacking in probative value because the plaintiffs’ expert was […]
he Second Department, reversing Supreme Court, determined plaintiff could seek rent overcharges based upon a 1986 rent reduction order: … [T]he plaintif’s first cause of action to recover damages for rent overcharges based upon the May 1, 1986, rent reduction order was not barred by the then-applicable four-year statute of limitations and the “look-back rule,” precluding […]
The Second Department determined plaintiff was entitled to summary judgment in an action for the return of an engagement ring after the engagement and marriage were called off: As a general matter, a party not under any impediment to marry may maintain an action to recover property, such as an engagement ring, given in contemplation […]
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