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QUESTION OF FACT WHETHER OPERATOR OF A SKATING RINK PROVIDED PROPER SUPERVISION AND THEREFORE WHETHER THE ASSUMPTION OF RISK DOCTRINE APPLIED, PLAINTIFF ALLEGED SHE WAS PUSHED TO THE ICE BY AN UNRULY SKATER (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant town, owner-operator of a skating rink, did not eliminate all questions of fact about whether it provided proper supervision at the rink. Therefore there was a question of fact whether the doctrine of assumption of the risk applied. Plaintiff alleged she was pushed to the ice […]

MOTION TO VACATE DEFAULT JUDGMENT MORE THAN A YEAR AFTER THE JUDGMENT WAS ENTERED SHOULD NOT HAVE BEEN GRANTED, ALTHOUGH THE COURT HAD THE POWER TO VACATE THE JUDGMENT IN THE INTEREST OF JUSTICE, DEFENDANT DID NOT OFFER A REASONABLE EXCUSE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant nursing home’s motion to vacate a default judgment, made more than a year after the default judgment, should not have been granted. The nursing home did not offer a reasonable excuse: A defendant moving pursuant to CPLR 5015(a)(1) to vacate a default in appearing or answering the […]

SEX OFFENDER MANAGEMENT PROCEEDING IN THIS HIGH PROFILE CASE SHOULD BE CLOSED TO THE PUBLIC TO PROTECT THE IDENTITIES OF THE VICTIMS (THIRD DEPT).

The Third Department determined the respondent’s sex offender management proceeding should be held in a closed courtroom and the record should be sealed to protect the identities of the victims in this high profile sex offense case: Here, Supreme Court has taken steps to preserve the victims’ anonymity that include orders directing the media to […]

THE SCOPE OF A LANDOWNER’S DUTY TO KEEP PROPERTY IN A SAFE CONDITION IS MEASURED BY FORESEEABILITY, HERE A GRASSY PATH WAS CLEARED OF SNOW BY A SCHOOL CUSTODIAN, SO USE OF THE PATH WAS FORESEEABLE, HOWEVER THERE WAS A QUESTION OF FACT WHETHER THE PATH CONSTITUTED A DANGEROUS CONDITION (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, determined there was a question of fact whether a grassy path used to walk from a parking lot to a school building constituted a dangerous condition in this slip and fall case. The path had been cleared of ice and snow by a custodian but the plaintiff described […]

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ALTHOUGH INDIVIDUAL DEFENDANTS, OFFICERS OR EMPLOYEES OF DEFENDANT CORPORATION, DID NOT SIGN THE AGREEMENT IN THEIR INDIVIDUAL CAPACITIES, THEY ARE ENTITLED TO ENFORCE THE ARBITRATION PROVISION OF THE AGREEMENT (FIRST DEPT).

The First Department determined the individual defendants, officers or employees of the corporate defendant, are entitled to enforce the arbitration provision of the contract, even though they were not signatories: The individual defendants, who were officers or employees of [defendant corporation] and did not sign the [agreement] in their individual capacities, are nevertheless entitled to […]

ALLEGED TORTIOUS ACTS DID NOT OCCUR IN NEW YORK, OUT OF STATE DEFENDANT DID NOT HAVE SUFFICIENT CONTACT WITH NEW YORK TO MEET DUE PROCESS STANDARDS, NO PERSONAL JURISDICTION (FIRST DEPT).

The First Department noted that personal jurisdiction pursuant to CPLR 3O2 (a)(3)(ii) stems from tortious acts which occur in New York, not financial effects felt in New York, and due process requires that an out-of-state defendant have minimum contacts with New York. Neither requirement was met here: A plaintiff relying on CPLR 302(a)(3)(ii) must show […]

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THE CONTROLLING STATUTE DOES NOT PROVIDE THAT THE CITY CAN SUE FOR DAMAGES FOR INJURY TO TREES, THE REGULATION WHICH PURPORTS TO ALLOW SUCH A SUIT DECLARED INVALID (FIRST DEPT).

The First Department, reversing Supreme Court, determined the plaintiff city was not authorized to sue defendant for money damages for defendant’s alleged injury to tress during sidewalk repair. Although a regulation allowed the suit, the controlling statute did not. The regulation was declared invalid: The motion court erred in ruling that the City has the […]

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DEFENSE COUNSEL DID NOT OBJECT TO THE COURT’S FAILURE TO INSTRUCT THE JURY DEFENDANT’S PRIOR CONVICTIONS COULD NOT BE CONSIDERED AS EVIDENCE OF GUILT OF THE OFFENSE ON TRIAL, DEFENSE COUNSEL TOLD THE JURY THEIR JOB WAS TO SEARCH FOR THE TRUTH THEREBY DIMINISHING THE PEOPLE’S BURDEN OF PROOF, AND DEFENSE COUNSEL INDICATED TO THE JURY DEFENDANT HAD TEN PRIOR CONVICTIONS, DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction, determined the defendant did not receive effective assistance of counsel: Defense counsel repeatedly stated to the jury during voir dire that the trial was to be “a search for the truth.” It is settled that a “prosecutor’s characterization of [a] trial as a search for the truth’ [is] indeed […]

ALTHOUGH THE DEFENDANT HOMEOWNERS ACTED AS A GENERAL CONTRACTOR, THEY DID NOT SUPERVISE OR CONTROL ANY OF THE WORK, HOMEOWNERS’ MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 240 (1), 241 (6) AND 200 CAUSES OF ACTION SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the homeowners’ motion for summary judgment dismissing the Labor Law 240 (1), 241 (6) and 200 causes of action should have been granted. Although the homeowners acted as a general contractor, they did not supervise or control any of the work: As the owners of a one-family dwelling […]

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A PARTNERSHIP CANNOT OPERATE THROUGH AN EXISTING CORPORATE STRUCTURE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, noted that a partnership cannot operate through an existing corporate structure: Plaintiffs operated a court reporting partnership from 1975 to 1999. Upon dissolution of the partnership, they agreed to consolidate their business with defendant, an existing court reporting corporation … . * * * … [A] party “cannot recover […]

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