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PLAINTIFF, AFTER FAILING TO ARGUE THAT DEFENDANTS WAIVED THE LACK OF STANDING DEFENSE BEFORE SUPREME COURT, COULD NOT RAISE DEFENDANTS’ WAIVER OF THE DEFENSE FOR THE FIRST TIME ON APPEAL, PLAINTIFF DID NOT DEMONSTRATE STANDING TO COMMENCE THE FORECLOSURE ACTION (SECOND DEPT).

The Second Department determined plaintiff did not demonstrate standing to bring the foreclosure action, and, further, could not raise defendant’s waiver of the lack-of-standing defense for the first time on appeal: The defense of lack of standing in an action to foreclose a mortgage is waived if the defendant does not raise it in a […]

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THE LETTER OF ENGAGEMENT SPELLED OUT WHAT THE ATTORNEYS AGREED TO DO, DEFENDANT-ATTORNEYS’ MOTION TO DISMISS THE LEGAL MALPRACTICE COMPLAINT ON THE BASIS OF DOCUMENTARY EVIDENCE WAS PROPERLY GRANTED (SECOND DEPT).

The Second Department found that the retainer agreement determined the scope of what the attorneys agreed to do and the motion to dismiss the legal malpractice complaint was properly granted. The plaintiff had retained the defendants after he was expelled form the New York College of Osteopathic Medicine: The letter of engagement provided, in relevant […]

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PLAINTIFF BANK DID NOT DEMONSTRATE NOTICE BY PROOF WHICH MET THE REQUIREMENTS OF THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE, THEREFORE THE BANK’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank did not demonstrate compliance with Real Property Actions and Proceedings Law (RPAPL) 1304 and, therefore, the bank’s motion for summary judgment should not have been granted: … [T]he plaintiff failed to submit an affidavit of service or proof of mailing by the post office evincing that […]

ALLEGATION THE LADDER PLAINTIFF WAS USING SHIFTED FOR NO APPARENT REASON ENTITLED PLAINTIFF TO SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION (SECOND DEPT).

The Second Department determined plaintiff was entitled to summary judgment on his Labor Law 240 (1) cause of action based upon the allegation the ladder he was using shifted for no apparent reason: The plaintiff made a prima facie showing of entitlement to judgment as a matter of law through his deposition testimony, demonstrating that […]

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PLAINTIFF’S PROOF THAT DEFENDANT SUPPLIED THE ALLEGEDLY DEFECTIVE WIRE MESH TO THE RETAILER IN THIS PRODUCTS LIABILITY ACTION WAS SPECULATIVE, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant Prime Source’s motion for summary judgment in this products liability case should have been granted. Plaintiff alleged he was injured when a roll of wire mesh recoiled and struck him. Prime Source presented it was not in the manufacturing or distribution chain of the wire mesh and plaintiff’s […]

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CITY’S POTENTIAL LIABILITY FOR THE ACTIONS OF A CITY BUS DRIVER WAS BASED ON RESPONDEAT SUPERIOR, THEREFORE A NEGLIGENT HIRING AND RETENTION ACTION WAS NOT VIABLE AND THE DRIVER’S PERSONNEL FILE WAS NOT DISCOVERABLE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the city’s motion to vacate the order compelling disclosure of the city bus driver’s personnel file should have been granted. Plaintiff alleged she was injured when she fell on a city bus. The city acknowledged that the driver was acting within the scope of his employment when the […]

PLAINTIFF’S PRO SE LEGAL MALPRACTICE COMPLAINT WAS PROPERLY DISMISSED AND LIMITS ON PLAINTIFF’S ABILITY TO ENGAGE IN FUTURE VEXATIOUS LITIGATION PROPERLY IMPOSED (SECOND DEPT).

The Second Department determined Supreme Court properly dismissed plaintiff’s pro se legal malpractice action and properly limited plaintiff’s ability to file additional motions: “Public policy generally mandates free access to the courts” … . Although a pro se litigant is afforded ” some latitude,’” he or she is not entitled to rights greater than any […]

PLAINTIFF WAS INJURED UNLOADING A TRUCK, HIS MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION SHOULD HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment on the Labor Law 240 (1) cause of action should have been granted. Plaintiff was injured when a truck was being unloaded: A hydraulic lift was being used to lower the flooring materials in pallets, or “skids,” weighing approximately 2,500 to 3,000 pounds, […]

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EVIDENCE THAT DEFENDANT USED HIS FAMILIAL RELATIONSHIP WITH THE WITNESS (DEFENDANT’S COUSIN) TO INDUCE THE WITNESS’S REFUSAL TO TESTIFY WAS SUFFICIENT TO WARRANT INTRODUCTION OF THE WITNESS’S PRIOR STATEMENTS AT TRIAL (SECOND DEPT).

The Second Department determined the evidence presented at the Sirois hearing was sufficient to warrant the conclusion that a witness, defendant’s cousin, refused to testify because of the actions of the defendant. Therefore statements made by the defendant’s cousin were properly admitted at trial: The People presented phone records evidencing the dates and the content of […]

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DEFENSE COUNSEL GAVE DEFENDANT THE WRONG INFORMATION ABOUT THE MAXIMUM SENTENCE SHOULD HE GO TO TRIAL, DEFENDANT’S GUILTY PLEA WAS THEREFORE NOT VOLUNTARY, EXCEPTION TO THE PRESERVATION REQUIREMENT FOR APPEAL APPLIED (SECOND DEPT).

The Second Department, vacating defendant’s guilty plea, determined: (1) the plea was not voluntary because defendant was given the wrong information about the possible maximum sentence if he went to trial; and (2) the error is an exception to the preservation requirement for appeal because defendant could not have known of the error at the time […]

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