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CONTRACTUAL AGREEMENT TO A ONE YEAR STATUTE OF LIMITATIONS FOR A BREACH OF CONTRACT ACTION SHOULD NOT HAVE BEEN ENFORCED, PLAINTIFF HAD NO CONTROL OVER WHEN THE DEFENDANT COULD TAKE AN ACTION WHICH BREACHED THE CONTRACT, HERE THE ALLEGED BREACH BY DEFENDANT DIDN’T TAKE PLACE UNTIL AFTER THE LIMITATIONS PERIOD (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that, under the facts, the contractual provision creating a one year statute of limitations for a breach of contract action was not fair and should not have been enforced. It was not the duration of the limitations period that was deemed unfair, rather it was the defendant’s lack […]

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FAILURE TO TIMELY FILE A CONSENT TO CHANGE ATTORNEY DID NOT JUSTIFY THE DENIAL OF A MOTION BROUGHT BY THE NEW ATTORNEY, DEFENDANT’S MOTION TO VACATE THE DEFAULT JUDGMENT SHOULD HAVE BEEN GRANTED BECAUSE THE PROCESS SERVER WAS UNABLE TO PRODUCE HIS LOG BOOK (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the failure to file a consent to change attorney form was not a reason to deny the motion brought by new counsel, and the motion to vacate plaintiff’s default should have been granted because the process server was not able to produce his log book: CPLR 321(b)(1) […]

ONE YEAR SUSPENSION OF PETITIONER’S DRIVER’S LICENSE SHOCKED ONE’S SENSE OF FAIRNESS, SUPREME COURT REVERSED, MATTER REMITTED TO THE COMMISSIONER OF MOTOR VEHICLES FOR IMPOSITION OF A 60 DAY SUSPENSION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that a one year suspension of petitioner’s driver’s license shocked one’s sense of fairness and remitted the matter to the Commissioner of Motor Vehicles to impose a 60 day suspension (the facts were not described): “An administrative penalty must be upheld unless it is so disproportionate to the […]

QUESTION OF FACT WHETHER OWNERS-OCCUPIERS OF A BUILDING UNDER CONSTRUCTION ARE LIABLE FOR A FALLING OBJECT INJURY TO A SIDEWALK PEDESTRIAN (FIRST DEPT).

The First Department determined there was a question of fact whether the owner of a building could be liable for injury to a sidewalk pedestrian caused by an object that fell from the building (which was under construction): Plaintiff Joseph Kosakowski was a pedestrian on the sidewalk adjacent to a building owned and occupied by […]

PLAINTIFF, WHO FELL FROM AN UNSECURED LADDER, WAS ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CLAIM, THERE WAS A QUESTION OF FACT ON THE LABOR LAW 241(6) CAUSE OF ACTION WHICH ALLEGED THE LADDER SLIPPED ON A WET FLOOR (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff, who fell from an unsecured ladder, was entitled to summary judgment on his Labor Law 240(1) claim. The court further found there was an issue of fact on plaintiff’s Labor law 241(6) claim because of evidence the ladder slipped on a wet floor: Plaintiff established prima facie […]

CHARACTER IN A MOVIE BASED UPON A SHORT STORY WAS IDENTIFIABLE AS PLAINTIFF, THE COMPLAINT STATED CAUSES OF ACTION FOR DEFAMATION AGAINST THE MAKERS OF THE MOVIE (FIRST DEPT).

The First Department determined the complaint by plaintiff, the ex-husband of the writer, Katha Pollitt, stated causes of action for defamation and the movie defendants’ motion to dismiss was properly granted. The short story, written by Katha Pollitt, on which defendants’ movie was based, referred to Pollitt’s lover as a philanderer and womanizer, but described Pollitt’s […]

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EMERGENCY DOCTRINE DOES NOT USUALLY APPLY IN REAR-END COLLISION CASES, VEHICLE AND TRAFFIC LAW RE FOLLOWING TOO CLOSELY CAN BE VIOLATED EVEN WHEN THERE IS NO COLLISION, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS SUDDEN-STOP BUS-PASSENGER INJURY CASE SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined that defendants’ motion for summary judgment, based upon the emergency doctrine, should not have been granted in this “sudden stop” bus-passenger injury case. The defendants alleged that the bus driver reacted to an emergency when a car in front of the bus stopped suddenly. However, the emergency doctrine […]

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COMPLAINT STATED NEGLIGENCE CAUSES OF ACTION AGAINST THE TOWN, A SPECIAL RELATIONSHIP BETWEEN PLAINTIFFS AND THE TOWN WAS SUFFICIENTLY ALLEGED, AND IT WAS SUFFICIENTLY ALLEGED THAT GOVERNMENTAL IMMUNITY DID NOT APPLY BECAUSE THE TOWN ENGINEER DID NOT HAVE THE AUTHORITY OR DISCRETION TO ACT AS HE DID (THIRD DEPT).

The Third Department determined the complaint stated causes of action in negligence against the town. Plaintiffs operated and owned property on which they were placing fill. The town issued a permit allowing the filling. The fill caused a substantial landslide. The Third Department found that the complaint alleged a special relationship between the town and […]

QUESTIONS OF FACT PRECLUDED SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE, RECENTLY MOPPED FLOOR WAS EXTREMELY WET, PLACEMENT OF CAUTION SIGNS DID NOT ELIMINATE NEGLIGENCE QUESTIONS (THIRD DEPT).

The Third Department determined defendant’s motion for summary judgment in this slip and fall case was properly denied. Defendant’s employee had recently mopped the area to clean up dog feces and then placed caution signs in the area. There was evidence the floor was extremely wet. The placement of the warning signs did not eliminate all […]

DEFENDANT DID NOT DEMONSTRATE IT DID NOT CREATE OR HAVE NOTICE OF THE WATER ON THE FLOOR WHERE PLAINTIFF FELL, WHETHER PLAINTIFF HAD PRIOR NOTICE OF THE CONDITION IS A COMPARATIVE NEGLIGENCE ISSUE THAT DOES NOT PRECLUDE SUMMARY JUDGMENT (FIRST DEPT).

The First Department determined defendant’s motion for summary judgment in this “water on floor” slip and fall case was properly denied. The defendant did not demonstrate it did not create or have notice of the condition. The fact that plaintiff may have had prior awareness of the condition was a comparative negligence issue that does not preclude summary […]

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