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PETITIONER WAS A PARTY ALONG WITH DECEDENT IN SEVERAL ACTIONS WHICH RESULTED IN PENDING APPEALS, PETITIONER THEREFORE HAD STANDING TO SEEK THE APPOINTMENT OF AN ADMINISTRATOR OF THE ESTATE OF THE DECEDENT, SURROGATE’S COURT REVERSED (SECOND DEPT).

The Second Department, reversing Surrogate’s Court, determined that petitioner had standing to seek the appointment of an administrator of the estate of the decedent who was a party, along with petitioner, is several actions which resulted in appeals pending before the Second Department: In this proceeding, the petitioner, the founder of Five Towns College, seeks the […]

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PROCEEDING LEADING TO THE REVOCATION OF APPELLANT’S ADJOURNMENT IN CONTEMPLATION OF DISMISSAL (ACD) AND ADJUDGING HIM A PERSON IN NEED OF SUPERVISION (PINS) FATALLY FLAWED BECAUSE APPELLANT WAS NEVER TOLD OF HIS RIGHT TO REMAIN SILENT (SECOND DEPT).

The Second Department, reversing Family Court, determined the proceeding which led to the revocation of appellant’s Adjournment in Contemplation of Dismissal (ACD) and adjudging him a person in need of supervision (PINS) was fatally flawed because appellant was never informed of his right to remain silent: Although the appellant’s term of custody has expired by […]

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FAMILY COURT SHOULD AMEND ITS ORDER GRANTING A SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) PETITION TO ADDRESS THE REASONS FOR THE REVOCATION OF THE PETITION BY THE US CITIZENSHIP AND IMMIGRATION SERVICES (SECOND DEPT).

The Second Department, reversing Family Court, determined that Family Court should amend its Special Immigrant Juvenile Status (SIJS) order to address the reasons for the revocation of the initial approval of the petition by the US Citizenship and Immigration Services (USCIS): The child moved for the issuance of an order making the requisite declaration and […]

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PLAINTIFF COULD BE HELD IN CONTEMPT FOR FAILURE TO COMPLY WITH A COURT ORDER TO POST A BOND, EVEN THOUGH THE BOND REQUIREMENT WAS LATER ELIMINATED ON APPEAL, HOWEVER PLAINTIFF PRESENTED CREDIBLE EVIDENCE HE WAS UNABLE TO OBTAIN THE BOND WHICH IS A DEFENSE TO CIVIL AND CRIMINAL CONTEMPT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that plaintiff father was required to comply with a court order to post a bond even though the order was modified on appeal to eliminate the bond requirement. However plaintiff provided credible evidence he was not able to obtain the required bond, which is a defense to the contempt […]

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PLAINTIFF RETAILER ATTEMPTED TO RECOVER PAYMENTS MADE TO A BANK STEMMING FROM THE HACKING OF MASTERCARD CREDIT CARD INFORMATION FROM THE RETAILER’S ACCOUNTS UNDER EQUITABLE SUBROGATION, MONEY HAD AND RECEIVED AND UNJUST ENRICHMENT THEORIES, COMPLAINT PROPERLY DISMISSED (SECOND DEPT). ​

The Second Department determined MasterCard’s motion to dismiss this equitable subrogation and unjust enrichment action by plaintiff (Jetro) stemming from the the alleged hacking or attempted hacking of MasterCard credit card information from Jetro computer systems was properly granted. MasterCard has a contract with PNC, a bank, which provided that MasterCard could recover assessments against […]

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QUESTION OF FACT WHETHER DEFENDANT WAS NEGLIGENT IN THIS REAR END COLLISION CASE, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment in this rear-end collision case should not have been granted. Plaintiff submitted defendant’s deposition in which defendant testified plaintiff stopped abruptly for no apparent reason: A rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the […]

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QUESTION OF FACT WHETHER THE ABSENCE OF A SECOND HANDRAIL, A VIOLATION OF THE BUILDING CODE, WAS A PROXIMATE CAUSE OF PLAINTIFF’S SLIP AND FALL IN A STAIRWAY, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined there was a question of fact whether the absence of a handrail on a stairway, a violation of the Building Code, was a proximate cause of plaintiff’s slip and fall. Therefore defendants motion for summary judgment should not have been granted: … [P]laintiff argued … that the absence […]

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CONSTRUCTIVE NOTICE OF LIQUID ON THE FLOOR IN THIS SLIP AND FALL CASE NOT DEMONSTRATED WITH RESPECT TO THE BUILDING OWNER, NO ESPINAL FACTORS ALLEGED WITH RESPECT TO THE CLEANING SERVICE, DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendants’ motions for summary judgment in this slip and fall case should have been granted. Constructive notice of the liquid on the floor was not demonstrated with respect to the building owner (Berkshire) and none of the Espinal factors were alleged with respect to the cleaning service […]

SUPREME COURT SHOULD NOT HAVE GRANTED PLAINTIFF PERMISSION TO SERVE AN AMENDED COMPLAINT AND SIMULTANEOUSLY AWARDED PLAINTIFF SUMMARY JUDGMENT ON SEVERAL CAUSES OF ACTION, THE AMENDED COMPLAINT SUPERSEDES THE ORIGINAL AND MUST BE ANSWERED BEFORE FURTHER PROCEEDINGS (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined Supreme Court should not have simultaneously granted plaintiff permission to amend the complaint and granted summary judgment on several causes of action. An amended complaint supersedes the original complaint and should be answered before any further proceedings: … Supreme Court should not have awarded the plaintiff summary judgment […]

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