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NEGLIGENT CONCEALMENT CAUSE OF ACTION AGAINST HOSPITAL ALLEGING THE FAILURE TO DISCLOSE BILLING PRACTICES SHOULD HAVE BEEN DISMISSED; GENERAL BUSINESS LAW 349 CAUSE OF ACTION PROPERLY SURVIVED (SECOND DEPT).

The Second Department determined the complaint did not state a cause of action for negligent concealment/misrepresentation, but did state a cause of action for violation of General Business Law 349. The plaintiff alleged defendant hospital failed to to disclose material facts about the hospital’s billing practices for emergency treatment: As a threshold matter, while the […]

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THE BANK DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE PROVISIONS OF REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL) 13O4 (SECOND DEPT).

The Second Department, reversing Supreme Court, determined compliance with the notice provisions of Real Property Actions and Proceedings Law (RPAPL) 1304 was not demonstrated by the bank: … [T]he affidavit of Theresia Ang, assistant vice president for the loan servicer, PHH Mortgage Corporation (hereinafter PHH), which was submitted in support of the motion, was insufficient to […]

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SUPREME COURT SHOULD NOT HAVE MODIFIED THE PARENTAL ACCESS PROVISIONS OF THE JUDGMENT OF DIVORCE WITHOUT HOLDING A HEARING (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the parental access provisions of the judgment of divorce should not have been modified without holding a hearing: “A party seeking a change in [parental access] or custody is not automatically entitled to a hearing, but must make an evidentiary showing sufficient to warrant a hearing” … . […]

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TIME TO SERVE DEFENDANT, WHO LIVED IN INDIA, IN THIS FORECLOSURE ACTION WAS PROPERLY EXTENDED IN THE INTEREST OF JUSTICE BUT SUPREME COURT SHOULD NOT HAVE DIRECTED AN ALTERNATIVE METHOD OF SERVICE, CRITERIA EXPLAINED (SECOND DEPT).

The Second Department, modifying Supreme Court, determined the time for serving defendant (Kothary), who lived in India, in this foreclosure action was properly extended in the interest of justice pursuant to CPLR 306-b. But Supreme Court should not have directed an alternative method of service (service upon the defendant’s attorney) pursuant to CPLR 308 (5): […]

PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION IN THIS FALLING OBJECT CASE; QUESTION OF FACT ON HIS LABOR LAW 241 (6) CAUSE OF ACTION (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on his Labor Law 240 (1)  “falling object” cause of action: The record reflects that plaintiff was on a temporary exterior platform on the 21st floor of a building under construction, when he was struck and injured by a falling piece of DensGlass, an […]

THE INCLUSION OF EXTRANEOUS INFORMATION ON THE VERDICT SHEET WHICH DID NOT PROVIDE ANY SUBSTANTIVE INFORMATION ABOUT THE CASE WAS HARMLESS ERROR (THIRD DEPT).

The Third Department determined, although it was error to include extraneous information on the verdict sheet, i.e., that the defendant had authorized the verdict sheet, the error was harmless: The Court of Appeals has “held that it is reversible error, not subject to harmless error analysis, to provide a jury in a criminal case with […]

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ALTHOUGH COUNTY COURT ISSUED, ENTERED AND FILED A DECISION ADJUDICATING DEFENDANT A LEVEL THREE SEX OFFENDER, THERE WAS NO LANGUAGE INDICATING THE DECISION WAS A JUDGMENT OR AN ORDER; IN ADDITION, THE RISK ASSESSMENT INSTRUMENT DID NOT INCLUDE “SO ORDERED” LANGUAGE; THEREFORE THERE WAS NO APPEALABLE ORDER BEFORE THE COURT AND THE APPEAL WAS DISMISSED (THIRD DEPT).

The Third Department dismissed the appeal of County Court’s SORA risk assessment because County Court did not issue an appealable order: Following a hearing, County Court rejected defendant’s challenge to certain assessed points, adjudicated him as a risk level three sex offender and designated him as a sexually violent offender. Defendant appeals. An appealable order […]

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PROOF OF OCCASIONAL DRUG USE IN THE REMOTE PAST AND REFERRALS FOR ALLEGED DRUG USE IN PRISON SEVERAL YEARS AGO WAS INSUFFICIENT TO WARRANT THE ASSESSMENT OF 15 POINTS FOR A HISTORY OF DRUG AND ALCOHOL ABUSE (THIRD DEPT).

The Third Department, reversing Supreme Court, determined defendant should not have been assessed 15 points for his history of drug and alcohol abuse. The evidence of drug use was remote in time and drug use was not an aspect of the offense: Defendant reported that, prior to moving to this area in 1987, he had […]

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SEARCH WARRANT FOR DEFENDANT’S CELL PHONE WAS OVERLY BROAD; GUILTY PLEA VACATED (FIRST DEPT).

The First Department, vacating defendant’s guilty plea, determined that the search warrant issued for defendant’s cell phone was  overly broad in that it authorized a search going back eight months before the conduct alleged in the warrant: The search warrant for defendant’s phones was overbroad. The application alleged that, on September 1, 2016, defendant sent […]

COURTROOM SHOULD NOT HAVE BEEN CLOSED TO FAMILY MEMBERS DURING THE UNDERCOVER OFFICER’S TESTIMONY, NEW TRIAL ORDERED (FIRST DEPT).

The First Department, ordering an new trial, determined the defendant’s family members should not have been excluded from the courtroom duing the undercover officer’s testimony: The People concede that the trial court erred in excluding defendant’s family members from some parts of the trial … . Here, the People failed to show specifically that defendant’s […]

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