The Second Department, remitting the matter for a hearing, determined that Family Court should not have granted mother's modification and violation petitions without holding a hearing: Where a facially sufficient petition has been filed, modification of orders relating to custody and visitation generally require a full and comprehensive hearing at which a parent is to […]
The Second Department determined a police officer injured trying to subdue and emotionally disturbed person can receive both Workers' Compensation and General Municipal Law 207-c benefits. The police chief denied the General Municipal Law 207-c benefits. Supreme Court annulled the police chief's denial holding that the police chief was estopped from denying the benefits because […]
The Second Department determined Supreme Court properly appointed a guardian for an incapacitated person, but should not have granted powers to the guardian over and above the powers recommended by the court-appointed evaluator: Mental Hygiene Law § 81.11(f) provides that “[i]f on or before the return date designated in the order to show cause the […]
The Second Department, reversing Supreme Court, determined the stipulation of settlement in this divorce action controlled, and a domestic relations order (DRO) which did not conform to the stipulation could not be enforced: “A stipulation of settlement that has been incorporated but not merged into a judgment of divorce is a contract subject to principles of […]
The Second Department determined the MetLife was not vicariously liable for an alleged civil assault and battery by a private investigator, who was deemed to be a subcontractor, not an employee of MetLife: ” The doctrine of respondeat superior renders a master vicariously liable for a tort committed by his [or her] servant within the […]
The Second Department determined Supreme Court properly searched the record and granted defendant’s summary judgment in this action on a promissory note. The agreement at issue was an illegal contract involving a fee-splitting arrangement between physicians and non-physicians which is prohibited by the Education Law: We agree with the Supreme Court’s determination to deny those […]
The Second Department determined the defendants demonstrated the storm in progress rule insulated them from liability in this snow and ice sidewalk slip and fall case because the slip and fall occurred less than four hours after the precipitation stopped. The motion to renew was properly denied because the newly submitted evidence did not call […]
The Second Department determined the motion to serve an amended notice of claim as a late notice of claim in this pedestrian accident case was properly denied. The original notice of claim alleged inadequate street lighting prevented the defendant driver from seeing the infant plaintiff. The amended notice of claim purported to add theories of liability […]
The Second Department, reversing Supreme Court, determined the defendants demonstrated it did not have notice of a defective seat in a movie theater and the res ipsa loquitur doctrine did not apply because the seat could have been caused by someone other than the defendants: The defendants demonstrated, prima facie, that they neither created nor had […]
The Second Department, reversing Supreme Court, determined there was a question of fact whether the continuous treatment doctrine tolled the statute of limitations in this dental malpractice case. The doctrine may apply to one of the dentists (Gold) who retired by imputing to him the continued treatment by other dentists: “Treatment” does not necessarily terminate […]
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