The Second Department, reversing Supreme Court, determined that the destruction of plaintiff’s truck, which was allegedly struck by defendant’s truck, warranted striking the complaint: … [O]n their motion pursuant to CPLR 3126 to strike the complaint, the defendants sustained their burden of establishing that the plaintiff was obligated to preserve the truck at the time […]
The Second Department, reversing Supreme Court, determined that plaintiff’s motion for summary judgment in this scaffold-collapse, Labor Law 240 (1) action should have been granted. The defendant did not raise a question of fact whether plaintiff’s omission (failure to use clips) was sole proximate cause of the movement of the scaffold and the fall: … [T]he […]
The Second Department, reversing Supreme Court, determined the county’s motion for summary judgment in its action to seize defendant’s vehicle pursuant to the Nassau County Administrative Code after a DWI conviction (Vehicle and Traffic Law 1192) should not have been granted. The county did not comply with the notice requirements of the code: …. [T]he complaint, […]
The Second Department, reversing Supreme Court, determined there was a question of fact about whether the bus on which plaintiff was a passenger stopped in an unusual and violent way, injuring her: To prevail on a cause of action alleging that a common carrier was negligent in stopping a bus, a plaintiff must prove that […]
The Second Department determined defendant insurer (Utica) failed to timely disclaim coverage of the additional insureds and was therefore obligated to defend and indemnify the additional insureds in this construction accident case: … [T]he plaintiff AVR-Powell C Development Corp. (hereinafter AVR-Powell), the owner of and general contractor at a construction site located on Lax Avenue […]
The Second Department determined the evidence of defendants’ dog’s vicious propensities was sufficient to warrant denial of defendants’ motion for summary judgment in this dog bite case: … [T]he defendants met their prima facie burden of demonstrating their entitlement to judgment as a matter of law dismissing the complaint insofar as asserted on behalf of […]
The Second Department, reversing Supreme Court, determined an order that was not served on the defendant by the plaintiff, here an order striking the answer if discovery demands were not complied with by a specified date, was not enforceable: … [T]he plaintiff, as the successful moving party given that the Supreme Court conditionally granted that branch of […]
The Second Department, reversing Supreme Court, determined plaintiff bank in this foreclosure action should have been granted more time to serve the defendant by publication: Pursuant to CPLR 306-b, a court may, in the exercise of discretion, grant a motion for an extension of time within which to effect service upon “good cause shown or […]
The Second Department determined vacated defendant’s conviction of two inclusory concurrent counts of the court alleging aggravated operation of a operation of a motor vehicle in the first degree: … [T]he counts alleging driving while intoxicated as a felony in violation of Vehicle and Traffic Law § 1192(3) and aggravated unlicensed operation of a motor […]
The Second Department, reversing Supreme Court, determined that Supreme Court should not, sua sponte, have granted relief which was not requested by a party. Petitioner allegedly was injured trying to board a subway train. Before filing a notice of claim petitioner commenced a CPLR 3102 (c) proceeding to obtain discovery before starting the action. The court […]
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