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DEFENDANT PROPERTY OWNER DID NOT REBUT THE PRESUMPTION THAT THE DEED WAS DELIVERED AND ACCEPTED ON THE DATE OF THE DEED IN THIS SLIP AND FALL CASE, THE PLAINTIFF’S ALLEGED FALL OCCURRED THE DAY AFTER THE DATE OF THE DEED (THIRD DEPT).

The Third Department determined that defendant did not rebut the presumption that the deed to the property where plaintiff fell was delivered and accepted the day before plaintiff’s fall: … [D]efendant submitted, among other things, an executed copy of the referee’s deed transferring ownership of the subject property to defendant, dated March 28, 2013, one […]

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FAILURE TO PRESERVE VIDEO WHICH WOULD HAVE SHOWN THE CONDITION OF THE FLOOR PRIOR TO PLAINTIFF’S SLIP AND FALL JUSTIFIED THE AWARD OF SUMMARY JUDGMENT TO PLAINTIFF (FIRST DEPT).

The First Department determined summary judgment was properly granted to the plaintiff in this slip and fall case because the defendant store did not preserve video which would have shown the condition of the floor prior to the fall: Although it was demanded within days of plaintiff’s slip and fall, defendants failed to preserve a […]

CIVIL ENFORCEMENT COMPLAINT BROUGHT BY THE ATTORNEY GENERAL STATED CAUSES OF ACTION AGAINST DEFENDANT INTERNET SERVICE PROVIDER ALLEGING FRAUDULENT AND DECEPTIVE PRACTICES CONCERNING THE ADVERTISING OF BROADBAND SPEEDS AND ACCESS TO ONLINE CONTENT (FIRST DEPT).

The First Department determined the civil enforcement complaint stated causes of action under the Executive Law and the General Business Law for fraudulent practices in advertising Internet speeds and reliable access to online content: Defendants make official disclosures about broadband speeds (actual speeds measured according to a testing protocol on the modems of consumers deemed […]

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EASEMENT COVENANT CONCERNING A THREE INCH ENCROACHMENT WAS A PERMITTED EXCEPTION UNDER THE REAL ESTATE PURCHASE AGREEMENT AND COULD NOT SERVE AS A GROUND FOR DEMONSTRATING SELLER WAS NOT READY, WILLING AND ABLE TO SELL THE PROPERTY ON THE TIME OF THE ESSENCE DATE, SELLER ENTITLED TO SECURITY DEPOSIT AND ATTORNEY’S FEES (FIRST DEPT).

The First Department determined defendant buyer failed to demonstrate the seller was not ready, willing and able to close on the time-of-the-essence date. The seller was entitled to keep the deposit. The buyer claimed that an easement-covenant addressing a three inch encroachment was an encumbrance which violated the purchase agreement. The court held that the […]

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PETITIONER WAS ENTITLED TO A VARIANCE ON FINANCIAL HARDSHIP GROUNDS, REGULATORY TAKING CAUSE OF ACTION WAS NOT RIPE FOR REVIEW (THIRD DEPT).

The Third Department, modifying Supreme Court, determined petitioner’s application for a variance should have been granted on financial hardship grounds, but the action alleging a regulatory taking was not ripe, an issue which can be raised on appeal for the first time. Petitioner demonstrated the character of the surrounding area had changed from residential to […]

COURIER FOR A WEB BASED DELIVERY SERVICE NOT AN EMPLOYEE (THIRD DEPT).

The Third Department, reversing the Unemployment Insurance Appeals Board, over a two-justice dissent, determined that a courier for a web based delivery service (Postmate) was not an employee entitled to unemployment insurance benefits: … [I]n order to work as a courier or delivery professional for Postmates, claimant and others similarly situated need only download Postmates’ […]

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IN DETERMINING ELIGIBILITY FOR PUBLIC ASSISTANCE THE APPLICANT’S EQUITY IN AN AUTOMOBILE, NOT ITS FAIR MARKET VALUE, MUST BE CONSIDERED, THE APPLICANT WAS ENTITLED TO DISCOVERY TO DETERMINE HOW MANY OTHERS HAVE BEEN AFFECTED BY THE WRONG ASSET-CALCULATION TECHNIQUE IN SEEKING CLASS CERTIFICATION (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Rumsey, modifying Supreme Court, determined the amount of an applicant’s equity in an automobile, not the fair market value (FMV), should be used in calculating whether an applicant is eligible for public assistance. Here the applicant owed more than the car was worth, but she was erroneously […]

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PETITIONER ENTITLED TO RENEWED STATUTE OF LIMITATIONS UNDER THE SON OF SAM LAW TO SEEK FUNDS IN THE CONVICTED MURDERER’S INMATE ACCOUNT, THE INMATE’S EARNED AND UNEARNED INCOME ARE AVAILABLE FOR RECOVERY (THIRD DEPT).

The Third Department determined petitioner was entitled to the renewed statute of limitations under the Son of Sam Law to seek earned and unearned income in the account of an inmate convicted of murder in 1986: Generally, a crime victim of a violent felony offense has 10 years from the date of the crime to bring a […]

THE RELATIONSHIP BETWEEN PLAINTIFF AND DEFENDANT WAS NOT CLOSE ENOUGH TO ALLOW AN UNJUST ENRICHMENT ACTION, DEFENDANT’S ACTIONS COULD NOT HAVE CAUSED PLAINTIFF’S RELIANCE OR INDUCEMENT (SECOND DEPT

The Second Department determined the relationship between plaintiff and defendant (Trovato) was not close enough to allow an unjust enrichment suit. Plaintiff had paid for shares in a corporation which were later sold to defendant. Plaintiff alleged the price paid by defendant was reduced by the amount plaintiff had already paid: To recover for unjust […]

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