The Second Department, reversing Supreme Court, determined that plaintiff’s work on an HVAC system was routing maintenance, not covered by Labor Law 241 (6): The plaintiff allegedly injured his back when he was performing a seasonal “start-up” of a cooling tower on the defendant’s HVAC system, which consisted of transitioning the HVAC system from heating […]
The Second Department, in a full-fledged opinion by Justice Miller, determined that a reinstatement provision in a mortgage which gives the borrower the option to de-accelerate the debt did not preclude the plaintiff bank from accelerating the debt, rendering the foreclosure action time-barred: This appeal presents an issue of first impression for this Court. The […]
The Second Department, reversing Supreme Court, determined the bank did not demonstrate that the notice requirements of RPAPL 1304 were met: … Lechtanski [the loan servicer representative] did not have personal knowledge of the purported mailing and failed to make the requisite showing that he was familiar with the plaintiff’s mailing practices and procedures, and […]
The Second Department, in a full-fledged opinion by Justice Dillon, determined that the 30-day period for filing a notice of appeal (CPLR 5513(a)) is triggered for all parties when any party serves the other parties with the order or judgment appealed from with written notice of entry: This appeal provides our Court with an occasion […]
The Second Department, reversing Supreme Court, determined defendant’s motion for summary judgment should have been granted because the cause of plaintiff’s decedent’s fall could not be identified. The Noseworthy lighter burden of proof did not apply. Although plaintiff’s expert identified defects in the area where plaintiff’s decedent fell, none of the defects were demonstrated to have caused […]
The Second Department, reversing defendant’s conviction, determined recordings of jail phone calls made by the defendant should not have been admitted in this criminal possession of a weapon case. It was possible the recordings related to a subsequent weapons charge, not the charge before the jury: … [T]he timing and content of the telephone calls […]
The Second Department, reversing defendant’s conviction, reaching the appellate issues in the interest of justice, determined that improperly admitted evidence warranted a new trial, noting that the prosecutor also acted improperly. The identity of the defendant was a key issue in this robbery case. The victim (Fernandez) should not have been allowed to testify that […]
The First Department, in a full-fledged opinion by Justice Oing, over a full-fledged, two-justice, dissenting opinion, reversing Supreme Court, determined that the NYC Charter did give the Public Advocate the power to conduct a summary inquiry into the adequacy of computer software designed to keep track of students with Individualized Education Programs (IEP’s) and to […]
The First Department determined the complaint in this shareholder derivative action was properly dismissed for failure to first make a demand for relief on the board. The Rales criteria were not met: Under Rales, “a court must determine whether . . . the particularized factual allegations of a derivative stockholder complaint create a reasonable doubt that, as of the […]
The First Department determined the absence of a retainer agreement did not preclude recovery of attorney’s fees under the account stated theory: … “[F]ailure to comply with the letter of engagement rule (22 NYCRR 1215.1) does not preclude . . . recovery of legal fees under a theory of account stated” … . The record before […]
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