The Second Department determined no appeal lies from an adjournment in contemplation of dismissal (ACD) which has resulted in dismissal: “It is a fundamental principle of our jurisprudence that the power of a court to declare the law only arises out of, and is limited to, determining the rights of persons which are actually controverted […]
The Second Department, reversing Supreme Court, determined defendant's motion for summary judgment in this dog bite case should not have been granted. An affidavit from plaintiff's neighbor raised a question of fact whether defendant was aware of the dog's vicious propensities. The Second Department further determined that the fact that the out-of-state affidavit was not […]
The Second Department, reversing Supreme Court, determined the snow-removal contractor's (Critics Choice's) motion for summary judgment in this slip and fall case should have been granted. Because plaintiff did not allege a violation of any of the Espinal factors, Critics Choice's demonstration that plaintiff was not a party to the snow removal contract was sufficient to warrant […]
The Second Department, reversing Supreme Court, determined defendant fencing club's motion for summary judgment in this negligent hiring and supervision, negligent infliction of emotional distress action should have been granted. A fencing coach (Kfir) who worked for the club engaged in an unlawful sexual relationship with infant plaintiff, for which the coach went to prison. The Second […]
The Second Department, reversing Supreme Court, determined the expert affidavit submitted by defendant emergency room defendants was insufficient to eliminate a question of fact whether the doctors departed from good and accepted medical practice. Plaintiff alleged his sports related injury was not correctly diagnosed in the emergency room: The plaintiff … submitted an affirmation from an […]
The Second Department determined plaintiff was entitled, pursuant to Real Property Actions and Proceedings Law (RPAPL) 1501 and the statute of limitations, to cancel and discharge a mortgage which defendant bank (Deutsche Bank) had accelerated more than six years before. Defendant bank argued that a letter sent by the original property owner, Aird (who had […]
The Second Department determined the order and judgment of foreclosure was properly granted. The court explained that an addendum to the note, which included the phrase “notwithstanding anything to the contrary set forth in the Note,” controlled. Based on the language of the addendum, appellants were required to make monthly payments during the construction period. Appellants […]
In this Lien Law action, the Second Department determined Supreme Court improperly precluded the plaintiff from offering evidence of the value and condition of items allegedly sold or damaged by defendants, the owners/operators of a storage unit plaintiff had rented. Defendants allegedly mistakenly believed plaintiff had failed to pay the rental fees and held an auction. […]
The Second Department determined Supreme Court properly granted defendant board of education's motion for summary judgment in this student-on-student assault case. In addition, Supreme Court properly denied plaintiff's motion to strike the answer based upon spoliation of evidence (a video): The complaint alleges that L.F., an infant, sustained injuries when he was picked up and […]
The Second Department determined defendant property-owner's motion for summary judgment in the inflatable-slide injury case was properly granted: The plaintiff's daughter allegedly was injured as she slid down an inflatable slide at a facility owned and operated by the defendant Live, Play and Bounce Corp. (hereinafter the defendant). Although both of her parents were present […]
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