The Third Department, over a two-justice dissent, determined the petition to change the child’s last name was properly granted to the extent that the hyphenated surnames of both parents, who are not married, were assigned to the child: The parties have joint legal custody and the mother has always had primary physical custody of the child. […]
The Third Department, reversing the Workers’ Compensation Board, determined the finding that claimant fraudulently exaggerated the effects of his injuries was not supported by the record. The Board’s rulings were based upon claimant’s answering calls as a volunteer firefighter and some video surveillance footage. But there was no evidence of what activities claimant engaged in […]
The Third Department, reversing County Court, determined defendant was entitled to a downward departure under risk level guidelines: Here, the Board recommended a downward departure on the ground set forth in the above guidelines. Significantly, the victim was to turn 17 only two months after the incident and reported that no force was used and that […]
The Second Department, reversing Supreme Court, determined that defendant NYC Transit Authority’s motion for summary judgment in this bus-passenger injury case should not have been granted: According to the plaintiff, the bus stopped in a manner that caused her to fall and sustain injuries. … In seeking summary judgment dismissing a complaint which alleges injuries […]
The Second Department, reversing Supreme Court, determined plaintiff’s motion to strike defendant’s answer on spoliation grounds in this medical malpractice and wrongful death action, made during jury selection, should not have been granted. It was not a proper motion for a judgment as a matter of law pursuant to CPLR 4401 and the ruling violated the […]
The Second Department, reversing Supreme Court, determined that plaintiff’s motion for summary judgment on his Labor Law 240 (1) cause of action in this ladder-fall case should have been granted: “Although [a] fall from a ladder, by itself, is not sufficient to impose liability under Labor Law § 240(1),’ liability will be imposed when the […]
The Second Department, reversing (modifying) Supreme Court, determined defendant’s motion to dismiss the complaint because defendant was not timely served should have been granted. The defendant was ambivalent about when he was served and the motion was denied on that ground. However, it is the plaintiff’s burden to prove when service was made: … [T]he […]
The Second Department, reversing Supreme Court, determined that the judge should not have, sua sponte, dismissed the complaint for neglect to prosecute without following the procedure required by CPLR 3216: The Supreme Court should not have, in effect, pursuant to CPLR 3216, sua sponte, dismissed the amended complaint, as the statutory preconditions to dismissal were […]
The Second Department, reversing Supreme Court, determined that the causes of action alleging fraud in the concealment of a recurring mold-causing condition should have been dismissed. The real estate contract included a disclaimer which stated that plaintiffs relied upon their own inspection of the property and not any representations made by others: “In an action […]
The Second Department, reversing Supreme Court, determined that a notice of entry in this foreclosure action, although the NYSCEF electronic filing system was used, was not properly served and therefore defendants’ time to answer never started running and defendants were not in default: Contrary to the determination of the Supreme Court, since the plaintiff never […]
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