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SURGEON, WHO HAD NO MEMORY OF PLAINTIFF’S PROCEDURE, SHOULD NOT HAVE BEEN ALLOWED TO TESTIFY ABOUT HIS USUAL CUSTOM AND PRACTICE IN PERFORMING A HERNIA REPAIR, DEFENSE JUDGMENT REVERSED IN THIS MEDICAL MALPRACTICE ACTION (SECOND DEPT).

The Second Department, reversing the defense verdict in a medical malpractice case, determined the trial court should not have allowed the defendant doctor, who had no independent memory of the hernia surgery he performed on plaintiff, to testify about his usual custom and practice, or habit. The surgery involved placement of a mesh patch on […]

VEHICLE WHICH STOPPED BEHIND A DISABLED VEHICLE FURNISHED THE CONDITION FOR THE SUBSEQUENT REAR-END COLLISION BUT WAS NOT THE PROXIMATE CAUSE OF THE COLLISION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the Perez defendants’ motion for summary judgment in this rear-end collision case should have been granted. Perez stopped his vehicle in the left lane behind a disabled vehicle when the driver of the disabled vehicle flagged him down. Plaintiff came to a stop behind the Perez vehicle and was attempting […]

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A LETTER INDICATING THE DEBT WOULD BE ACCELERATED IF THE ARREARS WERE NOT PAID DID NOT SERVE TO ACCELERATE THE DEBT IN THIS FORECLOSURE ACTION; DEFENDANT DID NOT DEMONSTRATE THE BANK FAILED TO COMPLY WITH THE NOTICE REQUIREMENTS OF RPAPL 1304 (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion for summary judgment contending the bank’s action was time barred and the bank failed to comply with RPAPL 1304 should have been denied. The 2010 letter from the bank which mentioned that the loan would be accelerated if the arreats were not paid did not serve […]

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STAY IMPOSED BY A SOUTH CAROLINA COURT AS PART OF THE LIQUIDATION OF A SOUTH CAROLINA MEDICAL MALPRACTICE INSURANCE CARRIER WAS NOT ENTITLED TO FULL FAITH AND CREDIT IN A NEW YORK ACTION AGAINST DEFENDANTS INSURED BY THE INSOLVENT CARRIER (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Duffy, determined that the stay imposed by a South Carolina court after the medical malpractice carrier, Oceanus, was declared insolvent and dissolved was not entitled to full faith and credit in the New York actions against parties insured by Oceanus. Oceanus was not a party to […]

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FRENCH COMPANY WHICH MANUFACTURED ELEVATOR BRAKES FOR SALE TO OTHER MANUFACTURERS DID NOT HAVE SUFFICIENT CONTACTS WITH NEW YORK TO CONFER JURISDICTION IN THIS ELEVATOR MALFUNCTION CASE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined New York did not have jurisdiction over a French company (Warner Europe) which manufactured elevator brakes in this elevator-malfunction case. The French company sold the brakes to other companies which incorporated the brakes into their elevator A.C. drives: Warner Europe established that it does not sell the elevator […]

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PURCHASE AGREEMENT DID NOT ALLOW BUYERS TO TERMINATE THE CONTRACT DURING THE CONTINGENCY PERIOD, BUYERS’ ACTION TO RECOVER THE DOWN PAYMENT PROPERLY DISMISSED (SECOND DEPT).

The Second Department determined the seller’s motion for summary judgment in this action by the buyers for return of the deposit was properly granted. The buyers purported to cancel the real estate purchase contract when the bank denied the mortgage application. But the purchase agreement did not allow the buyers to terminate the contract at […]

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JUDGE WAS WITHOUT AUTHORITY TO DISMISS THE FORECLOSURE COMPLAINT; ISSUE HAD NOT BEEN JOINED AND THERE WAS NO EVIDENCE PLAINTIFF FAILED TO APPEAR AT A SCHEDULED CONFERENCE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined Supreme Court was without authority to dismiss (sua sponte) the complaint in this foreclosure action because (1) issue had not been joined, and (2) there was no evidence plaintiff failed to appear at a conference: CPLR 3216(b)(1) states that no dismissal should be made under this statute unless […]

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PLAINTIFF BANK DID NOT PRESENT SUFFICIENT EVIDENCE OF THE LOSS OF THE NOTE IN THIS FORECLOSURE ACTION; THE MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank did not present sufficient evidence concerning the allegedly lost note. The bank’s motion for summary judgment in this foreclosure action should not have been granted: Among the evidence offered by the plaintiff was a lost note affidavit, signed by a representative of Beneficial Homeowner Service Corporation […]

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PLAINTIFF BANK SUBMITTED EVIDENCE IN INADMISSIBLE FORM AND DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE CONDITIONS IN THE MORTGAGE; DEFENDANT’S SUMMARY JUDGMENT MOTION IN THIS FORECLOSURE ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the evidence submitted by defendant in this foreclosure action was either not in admissible form or did not comply with the requirements of the mortgage: In support of those branches of its motion which were for summary judgment on the complaint insofar as asserted against the defendant […]

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JUDGE SHOULD NOT HAVE, SUA SPONTE, GRANTED DEFENDANTS AN EXTENSION OF TIME TO ANSWER IN THIS FORECLOSURE ACTION, RELIEF WHICH WAS NOT REQUESTED BY DEFENDANTS (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the judge should not have, sua sponte, granted relief in this foreclosure action which was not requested by the defendant: “The court may grant relief that is warranted pursuant to a general prayer for relief contained in a notice of motion if the relief granted is not too […]

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