The First Department, reversing Supreme Court, determined it is the role of the court, not the arbitrator, to rule on whether a non-signatory is bound by an arbitration agreement: The issue of whether a party is bound by an arbitration provision in an agreement it did not execute is a threshold issue for the court, […]
The First Department determined defendant school’s motion to dismiss the complaint was properly denied. Plaintiffs alleged the school retaliated against them after they complained about race-related issues by making a false child neglect report to Child Protective Services (CPS). The school argued the plaintiffs will not be able to learn the identity of the person […]
The First Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment on his Labor Law 240 (1) cause of action should have been granted. Defendant’s expert’s affidavit was deemed speculative because it was not based upon record evidence. Defendant’s argument that further discovery might reveal defenses was rejected, in part, because defendant was not […]
The First Department, reversing Supreme Court, determined defendant did not receive effective assistance of counsel because there was a reasonable possibility a plea to something less than an aggravated felony could have been worked, with no mandatory deportation consequences: At the hearing, defense counsel candidly admitted that he did not know, at the time of […]
The First Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment in this Labor Law 240 (1) action should have been granted, despite an affidavit from the plaintiff which, in part, contradicted his deposition testimony. Plaintiff was struck from above by the chain in a chain hoist system: Supreme Court correctly concluded that plaintiff […]
The First Department, reversing Supreme Court, determined the judges should have, sua sponte, granted plaintiff leave to file a second amended complaint in the absence of a motion and a proposed pleading. The leave to amend was vacated: The motion court should not have sua sponte granted plaintiff leave to file a second amended complaint […]
The First Department, reversing defendant’s conviction and ordering a new trial, in a full-fledged opinion by Justice Renwick, determined that a juror who attempted to develop a relationship with a jailed cooperating prosecution witness during deliberations exhibited actual and implied bias, thereby depriving defendant of a fair trial. Although the juror and the witness were not […]
The Second Department, reversing Supreme Court, determined the plaintiff bank (Aurora) did not provide sufficient proof of providing notice of default to defendants. The Second Department noted that the bank need not affirmatively prove compliance with the notice requirements of RPAPL 1304 because the issue was not raised in defendant’s answer. The court also noted […]
The Second Department, reversing Family Court, determined mother’s motion to vacate the order finding she had neglected the children should have been granted: In May 2018, the mother moved pursuant to Family Court Act § 1061 to vacate so much of the order of fact-finding and disposition as, upon her consent to the entry of […]
The Second Department, reversing Family Court, determined Family Court should not have awarded sole custody of daughter to mother and granted mother’s petition to relocate without completing the hearing: The mother commenced this proceeding against the father seeking to modify a prior order of custody so as to award her sole legal and physical custody […]
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