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LEAVE TO FILE A LATE NOTICE OF CLAIM WAS PROPERLY GRANTED IN THIS CANCER TREATMENT MALPRACTICE ACTION, WHERE THE ALLEGED MALPRACTICE IS APPARENT FROM THE MEDICAL RECORDS, THE RECORDS CONSTITUTE ACTUAL KNOWLEDGE OF THE CLAIM (SECOND DEPT).

The Second Department determined petitioner’s motion seeking leave to file a late notice of claim for medical malpractice against the NYC Health & Hospitals Corporation was properly granted. Plaintiff alleged malpractice in the treatment of a cancerous lesion: “Where the alleged malpractice is apparent from an independent review of the medical records, those records constitute […]

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PROPERTY DEFENDANTS’ MOTION TO JOIN THE SLIP AND FALL ACTION WITH A MEDICAL MALPRACTICE ACTION STEMMING FROM THE SLIP AND FALL INJURY PROPERLY DENIED (SECOND DEPT).

The Second Department determined the property defendants’ motion to join the slip and fall action with a medical malpractice action stemming from the slip and fall injury was properly denied. Plaintiff had stepped in a rodent hole and subsequently sued hospitals for malpractice in the treatment of her foot injury: “When actions involving a common […]

PLAINTIFF, WHO LOST HIS JOB AFTER HIS MORTGAGE HAD BEEN APPROVED AND THE MORTGAGE CONTINGENCY IN THE PURCHASE CONTRACT WAS SATISFIED, WAS ENTITLED TO THE RETURN OF THE DEPOSIT, THE REVOCATION OF THE MORTGAGE COMMITMENT WAS NOT DUE TO BAD FAITH ON PLAINTIFF’S PART (SECOND DEPT).

The Second Department determined plaintiff was entitled to return of his deposit in this real estate transaction. The contract allowed the return of the deposit if plaintiff did not qualify for a mortgage within a specified period of time. Plaintiff did qualify within the allowed time. However, he subsequently lost his job and could not […]

$1.5 MILLION VERDICT AFFIRMED, PLAINTIFF, A 72-YEAR-OLD WOMAN, WAS INJURED WHEN THE BUS SHE HAD JUST BOARDED ACCELERATED QUICKLY CAUSING HER TO FALL, INJURING HER HEAD, BACK, NERVES AND KNEE (SECOND DEPT).

The Second Department upheld the $1.5 million verdict in favor of plaintiff, a 72-year-old woman who alleged the bus driver accelerated quickly just after plaintiff got on the bus causing her to fall and sustain disk, nerve, knee and head injuries: We … agree with the Supreme Court’s determination to deny that branch of the […]

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RECORDS PERTAINING TO PLAINTIFF’S RECEIPT OF NO-FAULT BENEFITS ARE DISCOVERABLE AND MUST BE TURNED OVER TO THE DEFENDANT, EVEN IF PLAINTIFF IS NOT SEEKING RECOVERY OF UNREIMBURSED SPECIAL DAMAGES (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that plaintiff was required to turn over to defendant records pertaining to no-fault benefits in this car accident case. Plaintiff had argued the records were not discoverable because plaintiff was not seeking to recover unreimbursed special damages: CPLR 3101(a) provides, in relevant part, that “[t]here shall be full […]

PLAINTIFFS DID NOT ALLEGE THAT DEFENDANT CREATED THE DANGEROUS CONDITION AND DEFENDANT DEMONSTRATED IT DID NOT HAVE NOTICE OF THE CONDITION, THEREFORE DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS ICE AND SNOW SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion for summary judgment in this ice and snow slip and fall case should have been granted. Plaintiffs did not alleged defendant created the dangerous condition and defendant demonstrated it did not have actual or constructive notice of the condition: Here, the plaintiffs did not allege that […]

THE FACT THAT DEFENDANT’S REPRESENTATIVE’S SIGNATURE AND THE JURAT APPEARED ON AN OTHERWISE BLANK PAGE SEPARATE FROM THE AFFIDAVIT WAS NOT A GROUND FOR DENIAL OF DEFENDANT’S UNOPPOSED MOTION FOR SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s unopposed motion for summary judgment should not have been denied on the ground that defendant’s representative’s signature and the jurat appeared on a page separate from the rest of defendant’s affidavit: The Supreme Court denied the motion on the ground that, in an affidavit of Charles Dunne, […]

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CPLR 311-A REQUIREMENTS FOR SERVICE OF PROCESS ON A LIMITED LIABILITY COMPANY NOT MET, COURT DID NOT OBTAIN JURISDICTION OVER DEFENDANT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the plaintiff did not comply with the CPLR requirements for service of a summons and complaint upon a limited liability company and the court did not obtain jurisdiction over the defendant: Here, the plaintiff commenced the action by the filing of a summons and verified complaint on September […]

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MOTION TO VACATE CONVICTION SHOULD NOT HAVE BEEN SUMMARILY GRANTED WITHOUT A HEARING, THREE CRITERIA FOR VACATING A CONVICTION EXPLAINED, HERE DEFENDANT ALLEGED HE WOULD NOT HAVE PLED GUILTY HAD HE BEEN CORRECTLY INFORMED BY COUNSEL OF THE DEPORTATION CONSEQUENCES OF HIS PLEA (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant’s motion to vacate his conviction should not have been summarily granted and remanded the matter for a hearing. The defendant alleged defense counsel was ineffective for failure to correctly inform him of the deportation consequences of his guilty plea. The First Department offered a detailed explanation of […]

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