The Third Department, annulling the determination, held that the petitioner did not engage in lewd conduct merely by urinating in his cell: … [T]he Attorney General concedes, and we agree, that substantial evidence does not support that part of the determination finding petitioner guilty of engaging in lewd conduct… . The female correction officer testified […]
The First Department determined defendant's motion for summary judgment in this slip and fall case was properly denied. The plaintiff presented evidence that the proximate cause of his stairway fall over the guardrail was the inadequate height of the guardrail: … [P]laintiff raised an issue of fact by submitting an affidavit by an expert engineer who […]
The Second Department noted that a defendant who has not yet served an answer cannot move for summary judgment: A motion for summary judgment may only be made after joinder of issue (see CPLR 3212[a]). Where, as here, it is conceded that the defendant had not served an answer before moving for summary judgment, issue was […]
The Second Department noted that, in New York, an intentional infliction of emotional distress cause of action cannot be brought against a spouse or former spouse regarding event occurring during marriage: New York does not recognize a cause of action alleging the intentional infliction of emotional distress between spouses or former spouses based upon allegations […]
The First Department, in a full-fledged opinion by Justice Singh too complex to fairly summarize here, reversing Supreme Court, determined that plaintiff was a third-party beneficiary to the contract, despite the boilerplate exclusion of third-party beneficiaries: …[W]e reject defendant's contention that plaintiff does not have standing to sue for breach of the [agreement] because it is not […]
The Second Department, reversing Supreme Court, noted that a party who has been granted a preliminary injunction must give an undertaking, although the amount is within the court’s discretion: The plaintiff commenced this action for specific performance of a contract for the sale of certain real property in Queens. The plaintiff moved for a preliminary injunction, […]
The First Department, in a full-fledged opinion by Justice Andrias, determined that the requirement that Bear Stearns repay $160,000,000 constituted a penalty (disgorgement) for improper profit-taking, even where the benefits went to others and not Bear Stearns, and therefore was not a “loss” for which Bear Stearns' insurer was liable: The law of the case is applicable […]
The Second Department, reversing Supreme Court, determined that the causes of action alleging that parties should have been named as additional insureds in this Labor Law 200 and 241 (6) action should have been dismissed. Contracts which call for the procurement of insurance do not, without specific provisions, require parties to be named as additional […]
The Second Department determined petitioner's challenge to the city water bills was properly deemed time-barred. Petitioner argued that the city should be estopped from taking advantage of the four-year statute because of a delay in correcting an inaccurate bill: The petitioner's contention that DEP and the Water Board should be estopped from applying the four-year […]
The Second Department, reversing Supreme Court, determined the relation-back doctrine should have been applied to allow plaintiff to add a party to the Labor Law 200 and 241 (6) complaint after the statute of limitations had run: On October 15, 2007, the plaintiff, a construction worker, allegedly was injured while performing demolition work on the […]
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