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DEFENDANTS DID NOT DEMONSTRATE PLAINTIFF COULD NOT PROVE IT WAS READY, WILLING AND ABLE TO CLOSE IN THIS ACTION FOR SPECIFIC PERFORMANCE, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN DENIED WITHOUT CONSIDERING THE OPPOSING PAPERS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants were unable to demonstrate that plaintiff was not able to prove whether plaintiff was ready, willing, and able to close in the action for specific performance: To prevail on a cause of action for specific performance of a contract for the sale of real property, a plaintiff […]

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ALTHOUGH DEFENDANT GOULD DEMONSTRATED THE OTHER DRIVER, DEFENDANT PAPPAS, FAILED TO YIELD THE RIGHT-OF-WAY, DEFENDANT GOULD DID NOT DEMONSTRATE THE VEHICLE AND TRAFFIC LAW VIOLATION WAS THE SOLE PROXIMATE CAUSE OF THE ACCIDENT, THEREFORE DEFENDANT GOULD WAS NOT ENTITLED TO SUMMARY JUDGMENT (SECOND DEPT).

The Second Department determined the defendant driver (Gould) who collided with another defendant driver (Pappas) who had failed to yield the right-of-way was not entitled to summary judgment, noting that there can be more than one proximate cause of an accident: There can be more than one proximate cause of an accident’” … , and […]

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PLAINTIFFS’ EXPERT DID NOT SPECIALIZE IN THE RELEVANT AREA OF MEDICINE, HIS AFFIDAVIT THEREFORE DID NOT RAISE A QUESTION OF FACT, THERE WAS A QUESTION OF FACT WHETHER THE EMERGENCY EXCEPTION APPLIED TO THE GENERAL RULE A HOSPITAL IS NOT LIABLE FOR THE TREATMENT PROVIDED BY PRIVATE ATTENDING PHYSICIANS (SECOND DEPT).

The Second Department, modifying Supreme Court, determined (1) the plaintiff’s expert did not raise a question of fact about the quality of care provided by two of the defendants because he did not specialize in emergency medicine and didn’t indicate he had familiarized himself with the standard of care in that specialty, and (2) there […]

PLAINTIFF’S DEPOSITION TESTIMONY, SUBMITTED BY THE DEFENDANT IN SUPPORT OF DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS STAIRWAY SLIP AND FALL CASE, CONFLICTED WITH THE DEFENDANT’S EVIDENCE, SUMMARY JUDGMENT WAS NECESSARILY DENIED WITHOUT REFERENCE TO THE OPPOSING PAPERS (SECOND DEPT).

The Second Department determined defendant property owner’s motion for summary judgment in this stairway slip and fall case was properly denied. There was a conflict between the plaintiff’s description of the defect and the area where she fell (included in the deposition testimony submitted by the defendant) and the defendant’s evidence of the location of […]

SMALL DEFECT THAT WAS UNDER THE HANDRAIL AND NOT IN THE WALKING SURFACE OF THE STAIRWAY WAS TRIVIAL AND NOT ACTIONABLE (SECOND DEPT).

The Second Department, reversing Supreme Court in this slip and fall case, determined the defect in the stairway, which was small and was not located in the walking surface of the stairway, was trivial and not actionable: … [T]he defendant’s expert reviewed the transcript of the plaintiff’s examination pursuant to General Municipal Law § 50-h, […]

PLAINTIFF INJURED IN A SLAM DUNK COMPETITION AT BASKETBALL CAMP, DEFENDANT ENTITLED TO SUMMARY JUDGMENT UNDER THE ASSUMPTION OF THE RISK DOCTRINE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff assumed the risk of injury in a slam dunk competition at basketball camp: Under the doctrine of primary assumption of risk, “[i]f the risks [of a sporting activity] are known by or perfectly obvious to [a voluntary participant], he or she has consented to them and the […]

MERCHANDISE RACK IN THE AISLE OF DEFENDANT STORE WAS OPEN AND OBVIOUS AND NOT INHERENTLY DANGEROUS (SECOND DEPT).

The Second Department determined a merchandise rack in the aisle of defendant store was open and obvious and not inherently dangerous: [Plaintiff] commenced this action … to recover damages for personal injuries she allegedly sustained when she fell at the defendants’ department store in Yonkers, while attempting to walk past a merchandise rack situated in […]

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ACCIDENT REPORT DID NOT ALERT CITY TO THE ESSENTIAL ELEMENTS OF THE CLAIM IN THIS FIRE TRUCK TRAFFIC ACCIDENT CASE, AND THE EXCUSE FOR THE DELAY IN SEEKING TO FILE A LATE NOTICE OF CLAIM, LAW OFFICE FAILURE, WAS INSUFFICIENT, PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM PROPERLY DENIED (SECOND DEPT).

The Second Department determined the petition for leave to file a late notice of claim in this fire truck traffic accident case was properly denied. The accident report did not alert the city to the essential facts of the action, the motion was not timely made, and the excuse, law office failure, was insufficient: The police […]

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THE MOTOR VEHICLE ACCIDENT INDEMNIFICATION CORPORATION (MVAIC) CANNOT DEMAND A RELEASE FROM THE PLAINTIFF ONCE THE MVAIC’S OBLIGATION TO PAY HAS BEEN REDUCED TO A JUDGMENT (SECOND DEPT).

The Second Department modified the judgment in this uninsured driver traffic accident case. Although the Motor Vehicle Accident indemnification Corporation (MVAIC) can withhold payment until it receives a release from the plaintiff pursuant to a settlement agreement, the MVAIC cannot demand a release where, as here, a court has issued a judgment: “Where judgment has […]

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CIVILIAN COMPLAINT REVIEW BOARD’S RECORDS CONCERNING A PARTICULAR POLICE OFFICER EXEMPT FROM DISCLOSURE UNDER THE PUBLIC OFFICERS LAW AND CIVIL RIGHTS LAW (SECOND DEPT)

The Second Department, reversing Supreme Court, determined the Civilian Complaint Review Board (CCRB) records concerning a particular police officer were exempt from disclosure under the Public Officers Law and Civil Rights Law: Public Officers Law § 87(2)(a) provides, among other exceptions, that an agency may deny access to records that “are specifically exempted from disclosure […]

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