The Second Department noted that evidence submitted for the first time in reply papers was properly not considered. The context was a motion for leave to file a late notice of claim in a personal injury action. The evidence at issue was a supervisor’s report of injury and illness, presumably submitted to show the respondent’s […]
The Second Department, reversing Surrogate’s Court, determined that the petition under the Surrogate’s Court Procedure Act seeking the appointment of a guardian should have been granted. Petitioner is the sister of a severely disable person, Anna. Petitioner established Anna could not care for herself and the appointment was necessary to manage Anna’s affairs. Surrogate’s Court […]
The Second Department determined that plaintiff’s motion for summary judgment and plaintiff’s motion to set aside the verdict in this rear-end collision case were properly denied. Plaintiff was stopped when the rear-end collision occurred. However, defendant demonstrated that he was unable to stop because of slippery conditions: On his motion for summary judgment, the plaintiff […]
The Second Department determined the defendants, a hotel and elevator maintenance company, were entitled to summary judgment in this elevator-injury case. Plaintiff alleged she was injured when the doors of a freight elevator closed on her. A video showed that the doors remained open for the programmed period of time (20 seconds), plaintiff attempted to […]
The Second Department, reversing Supreme Court, determined the alleged raised area of a floor mat was not trivial as a matter of law: The plaintiff gave deposition testimony to the effect that she tripped and fell over a raised portion of a rubber mat near the entrance of the supermarket. The plaintiff’s husband testified at […]
The Second Department, reversing Supreme Court, determined that the petition for an the appointment of a guardian for Fritz, a person suffering from schizophrenia, should not have been granted on the evidence presented: The Supreme Court may appoint a guardian for a person if the court determines that the appointment is necessary to provide for […]
The Second Department, reversing Supreme Court, determined a release, which purported to cover future actions in a medical malpractice suit resulting from a hospital (NSUH) admission, did not preclude a second suit that arose from a second hospital admission: The parties settled Action No. 1 … and executed … a release that released NSUH “and […]
The Second Department determined plaintiff’s employment discrimination action was properly dismissed on collateral estoppel grounds. Plaintiff had brought a discrimination action in federal court which was dismissed. The Human Rights Law (NYCHRL) causes of action in state court, alleging the same facts as alleged in the federal case, were therefore properly dismissed. Defendants were not […]
The Second Department determined plaintiffs’ motion to vacate the dismissal of their medical malpractice action, which had been automatically dismissed pursuant to CPLR 3404, was properly denied: The plaintiff … allegedly was injured at the time of his birth in April 1995, as a result of the defendants’ negligence. In 1997, the plaintiffs commenced an […]
The Second Department determined Supreme Court should not have deemed service by Federal Express timely. The statute, CPLR 2103 (b)(6) , states that service is effective when the papers are deposited with Federal Express for overnight delivery. Here the Federal Express weekly delivery service was used: Contrary to the Supreme Court’s determination, CPLR 2103(b)(2) does […]
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