The Second Department determined plaintiff’s motion to vacate a default judgment in this foreclosure action should not have been granted: With regard to default judgments, CPLR 3215(c) provides, in pertinent part, that “[i]f the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter […]
The Second Department, reversing Supreme Court, determined that law office failure was an adequate excuse and appellants’ motion to vacate a default judgment should have been granted in this foreclosure action: … [T]he appellants moved, among other things, pursuant to CPLR 2005 and 5015(a) to vacate their default … . … “A motion to vacate […]
The Second Department, reversing Supreme Court, determined the defendants’ motion for summary judgment in this medical malpractice action should have been granted. Plaintiff’s expert’s affirmation concerning the alleged malpractice was deemed conclusory and therefore did not raise a question of fact. The informed consent cause of action was dismissed because the medical procedure was not the […]
The Second Department, reversing Supreme Court, determined defendants’ motion to dismiss the fraud cause of action should not have been granted. Supreme Court held the fraud action was duplicative of the breach of contract action: “The essential elements of a cause of action for fraud are representation of a material existing fact, falsity, scienter, deception […]
The Second Department, reversing Supreme Court, determined that the complaint against the municipal defendants could not be amended to assert a derivative cause of action by plaintiff’s decedent’s mother: In September 2015, the decedent commenced this action against the City, the Port Authority, and another defendant, alleging common-law negligence and violations of the Labor Law. […]
The Second Department, reversing Supreme Court, determined that emails which had inadvertently been provided to the plaintiff were not protected by attorney-client privilege. Therefore Supreme Court should not have granted a protective order pursuant to CPLR 3101 (b): … [T]he defendants failed to meet their burden of establishing a right to protection of the subject […]
The Second Department, reducing the defendant’s already completed sentence in the interest of justice, determined the waiver of appeal was invalid and the immigration consequences of defendant’s sentence warranted a reduction to 364 days: Given the defendant’s age of 20 years, that he had dropped out of high school in the 11th grade, that he […]
The Second Department determined the continuing wrong doctrine did not toll the statute of limitations in this employee-employer dispute about a health insurance premium contribution. The petitioner unsuccessfully argued each paycheck with the premium deduction was an independent wrong which tolled the statute of limitations: A challenge to an administrative determination must be commenced within […]
The Second Department, reversing Supreme Court, noted that it is the court’s role, in the first instance, to decide whether a matter is arbitrable. Here the appellants argued they were not parties to the agreement with the arbitration clause. Supreme Court erroneously referred that issue to an arbitration panel. The Second Department remitted the matter […]
The First Department, reversing Family Court, in a full-fledged opinion by Justice Webber, in a matter of first impression, and refusing to follow the 2nd Department, determined that the Interstate Compact for the Placement of Children (ICPC) applies only to children to be adopted or placed in foster care in another state, not, as here, […]
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