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BACKING INTO A PARKED CAR IS PRIMA FACIE EVIDENCE OF NEGLIGENCE, PLAINTIFF, WHO WAS INJURED WHEN THE PARKED CAR WAS PUSHED INTO HIM, ENTITLED TO SUMMARY JUDGMENT (FIRST DEPT).

The First Department, in a case remitted after reversal by the Ct. of Appeals, determined plaintiff was entitled to summary judgment in this vehicle accident case. Plaintiff was injured when a sanitation truck, which was backing up, slid on ice and hit a parked car. which in turn struck plaintiff. Initially the plaintiff’s motion for […]

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THE NYC LANDMARK PRESERVATION COMMISSION’S DESIGNATION OF TWO BUILDINGS AS PART OF A PROTECTED LANDMARK HAD A RATIONAL BASIS AND WAS NOT AN UNCONSTITUTIONAL TAKING, PETITIONER SOUGHT TO DEMOLISH THE TWO BUILDINGS AND CONSTRUCT CONDOMINIUMS (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Kahn, determined that the NYC Landmark Preservation Commission (LPC) acted rationally when it included two buildings among 13 others designated as a landmark, called the First Avenue Estate or FAE historic landmark. The petitioner wanted to destroy the two buildings and construct condominiums, an action prohibited […]

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DEFENDANT’S ALLEGED FAILURE TO REPAY MONEY PAID BY PLAINTIFFS PURSUANT TO A CONTRACT WHICH HAD BEEN TERMINATED STATED A CAUSE OF ACTION FOR CONVERSION, FRAUD IN THE INDUCEMENT CAUSE OF ACTION PROPERLY DISMISSED BECAUSE IT WAS BASED UPON NON-ACTIONABLE FUTURE EVENTS AND NON-ACTIONABLE OPINION ON THE PART OF THE DEFENDANT (FIRST DEPT).

The First Department determined plaintiffs’ cause of action for conversion should not have been dismissed and the cause action for fraud in the inducement was based upon non-actionable future conduct or events and non-actionable opinion. Plaintiffs hired defendant for extensive renovation work. Plaintiffs terminated the contract based upon defendant’s allegedly fraudulent requests for payment which […]

TENDER AGE PT (TAPT), WHICH PROVIDED SUPPLEMENTAL EDUCATION SERVICES TO THE DEPARTMENT OF EDUCATION, WAS NOT THE EMPLOYER OF CLAIMANT, A BEHAVIORAL ANALYST THERAPIST WHO RECEIVED WORK ASSIGNMENTS FROM TAPT (THIRD DEPT).

The Third Department, reversing the Unemployment Insurance Appeal Board, determined a that Tender Age PT (TAPT), which provided supplemental education services to the Department of Education, was not required to make additional unemployment insurance contributions based on remuneration paid to claimant, a behavior analyst therapist who received assignments from TAPT: TAPT’s overall control over important […]

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 […]

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