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OWNERS OF PROPERTY ABUTTING A ROADWAY CANNOT PROHIBIT PARKING ALONG THE ROADWAY UNLESS PARKED CARS IMPEDE ACCESS TO THE OWNERS’ PROPERTY (THIRD DEPT).

The Third Department determined that plaintiffs, who owned property abutting a road, could not prohibit defendants from parking along the road unless plaintiffs’ access to the property was blocked by the defendants: Supreme Court properly ruled that plaintiffs cannot prevent others from parking their vehicles within the highway easement on the road front property along […]

NOTICE SENT TO THE OWNER AND LIENHOLDER OF A CAR BY THE TOW SERVICE WHICH WAS STORING THE CAR DID NOT MEET THE REQUIREMENTS OF THE LIEN LAW, THEREFORE THE STORAGE FEES COULD NOT BE COLLECTED BY THE TOW SERVICE (THIRD DEPT).

The Third Department determined the tow service’s notice to the owner and lienholder of a car that was towed and then stored did not comply with the Lien Law and, therefore, no storage fees were due to the tow service: … [R]espondent’s purported lien for storage was invalid. Pursuant to Lien Law § 184 (5), […]

FALL THOUGH AN UNGUARDED FLOOR OPENING AT A CONSTRUCTION SITE IS COVERED UNDER LABOR LAW 240 (1), THERE WAS A QUESTION OF FACT WHETHER PLAINTIFF WAS ABLE TO TIE OFF HIS HARNESS, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, noted that, although the fall through an unguarded floor opening at a construction site was covered under Labor Law 240 (1), there was a question of fact whether plaintiff was able to tie off his harness. Therefore, plaintiff’s motion for summary judgment shouldn’t have been granted: “[A] fall through an […]

NO INDICATION IN THE INDICTMENT OR THE ALLOCUTION THAT THE THREE ‘POSSESSION OF A SEXUAL PERFORMANCE BY A CHILD’ OFFENSES TOOK PLACE AT DIFFERENT TIMES OR LOCATIONS, CONSECUTIVE SENTENCES NOT AUTHORIZED (THIRD DEPT).

The Third Department determined, based upon the wording of the indictment, the defendant should not have been given consecutive sentences the three counts of possession of a sexual performance of a child. The indictment alleged the offenses occurred at the same time and place: … [T]he imposition of consecutive sentences for possession of a sexual performance […]

NEW YORK LAW CONTROLS POLICE ENTRY AND SEARCH OF NEW JERSEY APARTMENT BUILDING, DEFENDANT DID NOT HAVE AN EXPECTATION OF PRIVACY IN THE COMMON AREAS OF THE BUILDING (FIRST DEPT).

The First Department determined New York law controlled the police entry and search of defendant’s apartment building in New Jersey, and defendant did not have an expectation of privacy in the common areas of the building: We find it unnecessary to decide any questions of New Jersey search and seizure law, because we find that […]

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ALTHOUGH A PARTY WHO SIGNS AN AGREEMENT IS USUALLY DEEMED TO HAVE READ IT, A RELATIONSHIP OF TRUST AND CONFIDENCE BETWEEN THE PARTIES MAY ALLOW ONE PARTY TO RELY ON THE ASSURANCES OF THE OTHER, A CERTIFIED BUT UNSIGNED TRANSCRIPT OF A DEPOSITION WAS ADMISSIBLE BECAUSE IT HAD BEEN TIMELY MAILED TO OPPOSING COUNSEL (FIRST DEPT).

The First Department determined, although the usual rule is one who signs an agreement is deemed to have read it, the rule may not apply when there is a relationship of trust and confidence between the parties and reliance on the assurances of a party (here the parties to a trust agreement were father and […]

THE TIME PERIOD FOR LEARNING THE IDENTITY OF DEFENDANTS DOES NOT BEGIN TO RUN WHEN A PLAINTIFF RETAINS COUNSEL, HERE THE ACTION WAS COMMENCED WHEN COUNSEL WAS RETAINED THREE DAYS BEFORE THE EXPIRATION OF THE STATUTE OF LIMITATIONS, THE COMPLAINT NAMED DEFENDANTS AS ‘JOHN DOES’ WHO WERE NOT IDENTIFIED UNTIL AFTER THE STATUTE HAD RUN, THE ACTION WAS DEEMED TIME-BARRED (THIRD DEPT).

The Third Department determined the time period for substituting a named defendant for a “John Doe” in a complaint does not begin to run when plaintiff retains counsel. Plaintiff alleged an overhead door fell on him and brought a negligence and products liability action naming “John Doe” defendants. The action was commenced when plaintiff retained […]

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FORMER PRESIDENT OF THE CORPORATION WHICH OWNED AN APARTMENT BUILDING HAD THE APPARENT AUTHORITY TO SELL THE BUILDING, BUYER WAS A BONA FIDE PURCHASER (SECOND DEPT).

The Second Department determined that the ostensible president the corporation (Lowbet) which owned an apartment building, Liu, had the apparent authority to sell the building, and the buyer, 44th Street Realty, was a bona fide purchaser. Although Liu had been removed as president and replaced by petitioner, that information was not provided to the Department of […]

LAW REGARDING SALE OF PROPERTY OWNED BY TENANTS BY THE ENTIRETY WHERE ONLY ONE SPOUSE SIGNS THE CONTRACT EXPLAINED (SECOND DEPT).

In an action involving two contracts for the sale of property owned by tenants by the entirety, one contract with plaintiff and one with defendant, the Second Department determined questions of fact precluded defendant’s motion for summary judgment. The court explained the law applicable to the sale of property owned by tenants by the entirety […]

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DEFENDANT DRIVER’S DEPOSITION TESTIMONY, WHICH CONTRADICTED THE ACCIDENT REPORT AND MV-104 FORM, DID NOT RAISE A QUESTION OF FACT, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS TRAFFIC ACCIDENT CASE SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that defendant driver’s testimony in a deposition, which contradicted the accident report and the MV-104 form, did not create a question of fact and plaintiff’s motion for summary judgment in this traffic accident case should have been granted. The accident report and MV-104 form indicated defendant driver was […]

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