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THE EVIDENCE PROVIDED BY THE THERAPIST THAT THE CHILDREN SUFFERED FROM PTSD, EXPERIENCED TRAUMA, AND EXPRESSED THEIR DESIRE TO STOP SEEING THEIR FATHER, COUPLED WITH THE CHILDREN’S STATEMENTS THAT THEY WITNESSED ABUSE, WARRANTED TERMINATION OF PARENTAL ACCESS WITH FATHER, FAMILY COURT REVERSED (SECOND DEPT).

The Second Department, reversing Family Court, determined the evidence demonstrated supervised parental access with father should have been terminated: According to [Family Court], there was no legal authority to suspend the father’s parental access with the children premised solely on their therapists’ belief that the children witnessed domestic violence and were sexually abused by the […]

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TIMELINESS OF A MOTION SEEKING CLASS CERTIFICATION IS MEASURED BY THE INITIAL MOTION, NOT A SUBSEQUENT MOTION TO RENEW AFTER DENIAL WITHOUT PREJUDICE, DEFENDANTS WERE EFFECTIVELY PREVENTING PLAINTIFFS FROM RENEWING THE CLASS CERTIFICATION MOTION BY REFUSING TO TURN OVER PAYROLL DATA TO WHICH THE PLAINTIFFS WERE ENTITLED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ motion to dismiss the class action allegations of the complaint should not have been granted and plaintiffs’ motion to compel the production of payroll data should have been granted. Plaintiffs are home health aides employed by defendants. Plaintiffs sought class certification for their Labor Law underpayment claims. […]

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DEFENDANT GRANDFATHER DID NOT HAVE A DUTY TO CONTROL HIS COLLEGE-AGE GRANDSON IN THIS ROAD RAGE INCIDENT, THEREFORE THE NEGLIGENCE ACTION WAS PROPERLY DISMISSED, HOWEVER THE AIDING-AND-ABETTING ASSAULT CAUSE OF ACTION AGAINST DEFENDANT GRANDFATHER SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department determined defendant Mancuso’s motion for summary judgment on the negligence cause of action was properly granted, but the motion for summary judgment on the aiding-and-abetting-assault cause of action should not have been granted. The action stemmed from a road rage incident. Defendant Mancuso was driving and his college-age grandson, Vaccaro, was a passenger. […]

ALTHOUGH PLAINTIFF ALLEGED THAT THE A-FRAME LADDER TOPPLED OVER, THERE WERE QUESTIONS OF FACT WHETHER THE LADDER WAS AN ADEQUATE SAFETY DEVICE AND, IF NOT, WHETHER THE LADDER WAS THE PROXIMATE CAUSE OF THE FALL, THE TRIAL COURT PROPERLY DENIED PLAINTIFF’S MOTION TO SET ASIDE THE DEFENSE VERDICT (SECOND DEPT).

The Second Department determined plaintiff’s (Loretta’s) motion for summary judgment in this Labor Law 240 (1) action was properly denied, and the trial court properly denied plaintiff’s motion to set aside the defense verdict. Apparently plaintiff alleged the A-frame latter toppled over when he was attempting to install a pipe. The facts of the case […]

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DEFAMATORY REMARKS MADE AT A MUNICIPAL PUBLIC MEETING HAD NOTHING TO DO WITH THE SUBSTANCE OF THE MEETING AND THEREFORE WERE NOT ABSOLUTELY PRIVILEGED, PLAINTIFF’S DEFAMATION ACTION PROPERLY SURVIVED A MOTION TO DISMISS (SECOND DEPT).

The Second Department determined plaintiff’s defamation action properly survived a motion to dismiss. The defendant sought permission from the Village’s Board of Historic Preservation and Architectural Review to add an exterior stairway to her house. At the public meeting plaintiff, defendant’s neighbor, objected to the stairway. Then defendant made some remarks directly to plaintiff which, […]

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IN THIS SLIP AND FALL CASE, THE PARKING LOT WAS THE SUBJECT OF A LICENSE AGREEMENT BETWEEN THE CITY AND THE ATHLETIC CLUB, NOT A LEASE, THEREFORE THE OUT OF POSSESSION LANDLORD DOCTRINE WAS NOT APPLICABLE, ALTHOUGH THE LICENSE AGREEMENT REQUIRED THE ATHLETIC CLUB TO MAINTAIN THE PARKING LOT, THE LICENSE AGREEMENT IMPOSED CERTAIN MAINTENANCE DUTIES ON THE CITY AS WELL, THE CITY’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant city did not demonstrate that it had relinquished control over the parking lot where plaintiff allegedly fell into an access pit. The access pit was exposed because a snow removal contractor pushed the cover off when plowing snow. The city had a license agreement with an […]

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INSURER SOUGHT A DECLARATION IT WAS NOT OBLIGATED TO DEFEND THE PROPERTY OWNER IN THIS FATAL ACCIDENT CASE, THE COURT ACCEPTED IN EVIDENCE A COPY OF THE POLICY WHICH DID NOT MEET THE REQUIREMENTS OF THE BEST EVIDENCE RULE, NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing Supreme Court and ordering a new trial, determined that the best evidence rule was violated when the court accepted a copy of the insurance policy. The plaintiff insurer (PLM) sought a declaration it was not obligated to defend the property owner in the action brought by a worker who fell through […]

PLAINTIFF’S DEPOSITION TESTIMONY INDICATED HIS FALL FROM AN A-FRAME LADDER WAS NOT CAUSED BY A DEFECT IN THE LADDER, PLAINTIFF LOST HIS BALANCE WHILE HOLDING A PIECE OF SHEETROCK, LABOR LAW 240 (1) CAUSE OF ACTION PROPERLY DISMISSED (SECOND DEPT).

The Second Department determined the Labor Law 240 (1) cause of action against the homeowner (Recio) was properly dismissed. Plaintiff alleged he fell from the third rung of a six-foot A-frame ladder. Plaintiff’s deposition testimony demonstrated the ladder did not fail. Plaintiff simply lost his balance while holding a piece of sheetrock: Recio demonstrated her […]

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FAMILY COURT SHOULD NOT HAVE REVIEWED THE SUPPORT MAGISTRATE’S NONFINAL ORDER AND GRANTED FATHER’S OBJECTIONS, FATHER’S ARGUMENT THAT HE WOULD NEED TO PAY ATTORNEY’S FEES AND SPEND TIME AWAY FROM WORK TO LITIGATE THE MATTER DID NOT RISE TO THE LEVEL OF IRREPARABLE HARM NEEDED TO JUSTIFY A REVIEW OF A NONFINAL ORDER (SECOND DEPT).

The Second Department, reversing Family Court, determined that father’s objections to the support magistrate’s nonfinal order should have been denied and explained the relevant criteria: Pursuant to Family Court Act § 439(e), “[s]pecific, written objections to a final order of a support magistrate may be filed by either party with the court within thirty days […]

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NEGLIGENCE AND NEGLIGENT SUPERVISION CAUSES OF ACTION AGAINST THE SCHOOL DISTRICT BROUGHT BY A STUDENT WITH SPECIAL NEEDS WHO LEFT SCHOOL AND ATTEMPTED SUICIDE ARE NOT SUBJECT TO THE EXHAUSTION OF REMEDIES REQUIREMENTS OF THE INDIVIDUALS WITH DISABILITIES EDUCATION ACT (IDEA) (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the negligence and negligent supervision, hiring, training and retention causes of action against the school district should not have been granted. Infant plaintiff is a special needs student who had an Individualized Education Program (IEP) pursuant to the Individuals with Disabilities Education Act (IDEA). The infant plaintiff left […]

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