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WHERE MALPRACTICE IS APPARENT FROM AN INDEPENDENT REVIEW OF MEDICAL RECORDS, THOSE RECORDS CONSTITUTE TIMELY NOTICE OF THE FACTS CONSTITUTING THE CLAIM, PLAINTIFF’S MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM PROPERLY GRANTED (SECOND DEPT).

The Second Department determined plaintiff’s motion for leave to file a late notice of claim was properly granted. Apparently plaintiff had fallen. The ambulance call report, prepared by defendants, indicated that plaintiff had limited response in her lower body. Plaintiff was rendered a partial quadriplegic. Expert opinions submitted in support of the motion were based […]

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WRIT OF MANDAMUS SEEKING TO COMPEL ENFORCEMENT OF ANIMAL CRUELTY LAWS IN CONNECTION WITH THE RELIGIOUS PRACTICE OF KILLING CHICKENS PROPERLY DENIED, MANDAMUS DOES NOT LIE FOR DISCRETIONARY ACTS OR TO COMPEL A PARTICULAR OUTCOME (CT APP).

The Court of Appeals determined a writ of mandamus seeking to compel the NYC Department of Health to enforce laws preventing animal cruelty was properly denied. The writ concerned the slaughter of chickens as part of the religious practice of Kaporos prior to Yom Kippur: A writ of mandamus “is an extraordinary remedy’ that is […]

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VOLUNTEER AGREEMENT WHICH PURPORTED TO RELEASE DEFENDANT EMPLOYER FROM LIABILITY FOR PLAINTIFF’S ON THE JOB INJURY WAS VOID AS AGAINST PUBLIC POLICY, MOTION TO AMEND THE ANSWER TO ASSERT THE RELEASE AS A DEFENSE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant employer should not have been allowed to amend its answer to assert a release from liability for plaintiff’s injury based on plaintiff’s signing a “Volunteer Agreement.” The Volunteer Agreement purported to release the employer from any liability for injury to plaintiff on the job. Plaintiff was struck by a […]

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CPLR 8501 AND 8503, WHICH REQUIRE AN OUT OF STATE LITIGANT TO POST SECURITY FOR COSTS IN CASE THE NONRESIDENT LOSES THE CASE, DOES NOT VIOLATE THE PRIVILEGES AND IMMUNITIES CLAUSE (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Feinman, determined that CPLR 8501 (a) and 8503, which require an out-of-state litigant to post a minimum of $500 security for costs in case the nonresident loses, does not violate the Privileges and Immunities Clause: When plaintiff commenced this personal injury action, she was a New York […]

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DEFENDANT SHOULD HAVE BEEN AFFORDED THE OPPORTUNITY TO CURE A DEFAULT IN MONTHLY PAYMENTS ON A LOAN BEFORE PLAINTIFF SOUGHT TO ENFORCE THE TERMS OF THE STIPULATION OF SETTLEMENT, WHICH WOULD RESULT IN DEFENDANT OWING MORE THAN TWICE WHAT REMAINED TO BE PAID (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court determined plaintiff should have given defendant the opportunity to cure an inadvertent failure to make a monthly payment pursuant to stipulation of settlement. Defendant had repaid much of the debt and, based on the default, would owe more than twice the amount that remained to be paid: … Supreme […]

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UK LAW REQUIRING COURT PERMISSION TO BRING A SHAREHOLDER DERIVATIVE ACTION WAS PROCEDURAL AND THEREFORE DID NOT APPLY IN THIS NEW YORK ACTION AGAINST LONDON-BASED HSBC FOR FAILURE TO IMPLEMENT MONEY-LAUNDERING PROTECTIONS, COMPLAINT DEMONSTRATED THE FUTILITY OF FIRST SEEKING REDRESS FROM THE CORPORATION, DOCTRINE OF FORUM NON CONVENIENS DID NOT APPLY, COMPLAINT SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the shareholder derivative action against HSBC (bank) alleging breach of a fiduciary duty to implement money laundering prevention safeguards should not have been dismissed. The nominal defendant, HSBC Holdings, is organized under the laws of the United Kingdom and is headquartered in London. The motion to dismiss alleged […]

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EVIDENCE THAT DEFENDANT JOINED A CONSPIRACY TO MURDER WAS LEGALLY INSUFFICIENT, MOTION FOR A TRIAL ORDER OF DISMISSAL SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing defendant’s conspiracy conviction, determined the evidence of defendant’s participation was legally insufficient: … [T]he People in this case were required, inter alia, to establish that the defendant entered into an agreement that was specifically intended to result in the death of Friday (count one) and Morris (count two) … . While […]

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PLAINTIFF’S COMPLAINT SEEKING SPECIFIC PERFORMANCE OF A REAL ESTATE PURCHASE CONTRACT PROPERLY DISMISSED BASED UPON THE LANGUAGE OF THE CONTRACT, PLAINTIFF DID NOT APPEAR AT EITHER SCHEDULED CLOSING AFTER SUBMITTING THE HIGHEST BID AND SIGNING THE CONTRACT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the county’s motion to dismiss plaintiff’s complaint seeking specific performance, based on the language of the real estate purchase contract, should have been granted. Plaintiff was the highest bidder on real property and signed a purchase contract but did not appear on the closing dates: … [W]e find […]

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POLICE OFFICERS CERTIFIED AS GANG EXPERTS PRESENTED INADMISSIBLE TESTIMONIAL HEARSAY IN THE GUISE OF EXPERT OPINION, ONE OF THE OFFICERS ACTED AS A SUMMATION WITNESS USURPING THE JURY’S FUNCTION OF INTERPRETING THE EVIDENCE, CONVICTIONS REVERSED (SECOND DEPT).

The Second Department, reversing defendant’s gang-related convictions, determined that the two police officers (Georg and Bracero) certified as experts in gang culture served as conduits for inadmissible testimonial hearsay and acted as summation witnesses usurping the jury’s role of interpreting the evidence: As a threshold matter, we note that Crawford does not bar the use of testimonial statements for […]

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PLAINTIFF STUDENT INJURED WHEN GYMNASIUM DOOR CLOSED ON HIS FINGER, INADEQUATE SUPERVISION WAS NOT THE PROXIMATE CAUSE OF THE INJURY, CITY IS NOT LIABLE FOR TORTS OF THE DEPARTMENT OF EDUCATION, NOTICE OF CLAIM DID NOT INCLUDE ALLEGATION THAT THE DOOR WAS DEFECTIVE (SECOND DEPT).

The Second Department determined plaintiff student’s negligent supervision cause of action against the city and the school district was properly dismissed. The city cannot be liable for the torts of the Department of Education. The student was injured when the gymnasium door closed on his finger. Negligent supervision was not the proximate cause of the […]

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