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QUESTION OF FACT WHETHER THE ENCROACHMENT OF A FIRE ESCAPE HOVERING OVER A PORTION OF DEFENDANT’S PROPERTY WAS HOSTILE AND CONTINUOUS FOR THE PRESCRIPTIVE PERIOD (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion for summary judgment in this prescriptive easement action should not have been granted. A fire escape on plaintiff’s building hovers over a portion of defendant’s land, which had been used as parking lot. The defendant argued the encroachment by the fire escape was permissive, not hostile, […]

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IT WAS ALLEGED ONE MAN INTENDED TO DOUSE ANOTHER WITH LIQUID IN A CUP BUT UNINTENTIONALLY THREW THE CUP ITSELF CAUSING INJURY; THERE WAS A QUESTION OF FACT WHETHER THE INJURY WAS CAUSED BY INTENTIONAL CONDUCT OR AN ACCIDENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff insurer’s (Unitrin’s) motion for summary judgment in this insurance-coverage dispute should not have been granted. Apparently Sullivan was in one car and the injured party, Ciminello, was in another car when Sullivan allegedly attempted to throw liquid that was in a cup into Ciminello’s car. It was alleged […]

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SUPREME COURT SHOULD NOT HAVE, SUA SPONTE, GRANTED RELIEF NOT REQUESTED IN PLAINTIFFS’ UNOPPOSED MOTION AND SHOULD NOT HAVE CONSIDERED EVIDENCE NOT BEFORE IT; THE ORDER SETTLING A CLASS ACTION FOR UNPAID WAGES AND OVERTIME SHOULD NOT HAVE DECLARED INVALID CERTAIN OPT-OUT STATEMENTS WHICH WERE NOT REFERRED TO IN PLAINTIFFS’ MOTION AND WERE NOT OTHERWISE BEFORE THE COURT (SECOND DEPT).

The Second Department, reversing Supreme Court in this class action seeking unpaid wages and overtime, determined Supreme Court should not have. sua sponte, declared certain opt-out statements (opting out of the class action settlement) invalid because the issue was not raised by the plaintiff’s motion and the opt-out statements were not properly before the court: Pursuant […]

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PEOPLE’S APPLICATION FOR AN UPWARD DEPARTURE NOT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE; EVIDENCE DEFENDANT WAS CHARGED BUT NEVER INDICTED OR CONVICTED DOES NOT MEET THE CLEAR AND CONVINCING STANDARD (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the People’s application for an upward department was not supported by clear and convincing evidence. Evidence defendant was charged but not indicted or convicted does not meet the clear and convincing standard: A departure from the presumptive risk level is generally the exception, not the rule (see Sex Offender […]

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PLAINTIFF’S COUNSEL’S REMARKS DURING SUMMATION DEPRIVED DEFENDANT RESIDENTIAL HEALTH CARE FACILITY OF A FAIR TRIAL; OVER $1 MILLION JUDGMENT IN THIS NEGLIGENCE/PUBLIC-HEALTH-LAW ACTION REVERSED (SECOND DEPT).

The Second Department, reversing the over $1 million judgment in this negligence and Public-Health-Law-2801-d violation case, determined plaintiff’s counsel’s remarks in summation required a new trial. Plaintiff’s decedent, who was at risk for falling, fell after getting up from a wheelchair at defendant residential health care facility and ultimately died: “[L]itigants are entitled, as a […]

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DEFENDANTS’ FAILURE TO ANSWER THE FORECLOSURE COMPLAINT WAIVED THE STATUTE OF LIMITATIONS DEFENSE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants in this foreclosure action, by defaulting, had waived the statute of limitations defense: CPLR 3211(e) provides that a defense based upon the statute of limitations is waived if not asserted in an answer or in a timely motion to dismiss pursuant to CPLR 3211(a). Such a motion […]

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STATEMENT FROM PLAINTIFF’S OUT-OF-STATE EXPERT IN THIS DENTAL MALPRACTICE ACTION NOT IN ADMISSIBLE FORM; CPLR 2106 REQUIRES A SWORN AFFIDAVIT FROM A DENTIST LICENSED IN ANOTHER STATE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the statement by a New Jersey dentist offered by the plaintiff in this dental malpractice action was not admissible because it was not in the form of a sworn affidavit. Therefore plaintiff did not raise a question of fact in opposition to defendants’ motions for summary judgment: In […]

DEFAMATION ACTION BASED UPON A REPORTER’S NAMING THE WRONG TEACHER AS HAVING BULLIED A FIFTH-GRADER PROPERLY DISMISSED; THE REPORTER HAD SUFFICIENT REASON TO RELY ON THE STUDENT’S MOTHER AND ANOTHER SOURCE BOTH OF WHOM PROVIDED THE WRONG NAME (FIRST DEPT).

The First Department determined defendant WPIX was not liable for an article about the bullying of a fifth-grader by a teacher. The teacher allegedly involved in the bullying had the last name “Rainbow,” but plaintiff, Starlight Rainbow, also a teacher, had no involvement with the student. The article misidentified the involved teacher as Starlight Rainbow. The […]

DEFENSE MOTION TO SET ASIDE THE VERDICT BASED UPON THE ALLEGED MISCONDUCT OF TWO JURORS SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING (FIRST DEPT).

The First Department, ordering a hearing, determined a juror’s expression of a romantic interest in a member of the prosecution team could amount to disqualifying juror misconduct. Allegations about another juror’s close relationship with a witness also warranted a hearing. The defense had moved to set aside the verdict alleging juror misconduct: The court improvidently […]

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CLASS ACTION AGAINST NYC HOUSING AUTHORITY FOR BREACH OF THE WARRANTY OF HABITABILITY RE: LOSS OF HEAT AND/OR HOT WATER GOES FORWARD (FIRST DEPT).

The First Department, reversing Supreme Court, determined the breach of the warranty of habitability cause of action should not have been dismissed . The plaintiff’s motion for certification of the “damages class” was granted. The class action concerned the loss of heat and/or hot water in NYC Housing Authority properties: In order to prove a […]

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