The Second Department determined the defendants were entitled to summary judgment on the Labor Law 240 (1) and 241 (6) causes of action because injury caused by stepping in an opening that is not big enough for a person to fall through is not covered: The defendants established, prima facie, their entitlement to judgment as […]
The Second Department, reversing Supreme Court, determined that a Yellowstone injunction should not have issued to plaintiff nightclub. The defendant landlord started proceedings to terminate the lease based upon an alleged violation of the noise-level provision in the lease: ” A Yellowstone injunction maintains the status quo so that a commercial tenant, when confronted by a threat of termination […]
The Second Department determined defendant failed to meet the proof requirements for adverse possession and ouster against a cotenant: In order to establish his counterclaim for adverse possession, the defendant was required to prove, by clear and convincing evidence, that his possession of the property was (1) hostile and under claim of right; (2) actual; […]
The Second Department determined the motion to vacate a default judgment pursuant to CPLR 317 and 5015(a) was properly denied because the defendant did not demonstrate it was not personally served with the summons and complaint. The court explained the criteria under each statute: CPLR 317 provides that a person served with a summons, other […]
The Second Department determined the hospital's motion for summary judgment in this medical malpractice action was properly denied. The hospital did not demonstrate that the two physicians alleged to have committed malpractice were not employees of the hospital and did not demonstrate the two physicians did not deviate from the acceptable standards of medical care: […]
The Second Department determined Supreme Court should not have searched the record to award summary judgment on a ground not raised by the parties in this car accident case. However, the Second Department determined summary judgment was properly granted to the umbrella insurer (RLI) on the ground that the owner of the leased car (CFC) […]
The Second Department determined the owners of property abutting the sidewalk where plaintiff fell did not present sufficient evidence to warrant summary judgment in this slip and fall case. The defendant-owners (Millers) argued the defect was trivial: “A defendant seeking dismissal of a complaint on the basis that the alleged defect is trivial must make […]
The Fourth Department determined the designating petition was properly invalidated on the basis of fraud: “As a general rule, a candidate's designating petition will be invalidated on the ground of fraud only if there is a showing that the entire designating petition is permeated with that fraud” … . “Even where the designating petition is […]
The Third Department determined the incident in which petitioner firefighter was injured constituted an accident within the meaning of the Retirement and Social Security Law: Petitioner testified that he had entered and exited ambulances hundreds of times during the course of his career as a firefighter. He was familiar with the folding step located at […]
The Third Department determined claimant was not entitled to schedule loss of use (SLU) benefits calculated on loss of use of his knee and ankle, as opposed to SLU calculated on loss of use of his leg generally: Workers' Compensation Law § 15 (3) sets forth SLU awards that the Board may make resulting from […]
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