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TOWN DID NOT DEMONSTRATE IT DID NOT CREATE THE CONDITION WHICH RESULTED IN THE FORMATION OF ICE, TOWN’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE PROPERLY DENIED (SECOND DEPT).

The Second Department determined the Town’s motion for summary judgment in this icy-road slip and fall case was properly denied. Although the Town demonstrated it did not have written notice of the condition, it did not demonstrate it did not create the condition: The plaintiff alleges that he was injured when he slipped and fell […]

PLAINTIFF, A PASSENGER IN A STOPPED CAR HIT FROM BEHIND, WAS ENTITLED TO SUMMARY JUDGMENT, WHETHER THE PLAINTIFF’S DRIVER WAS COMPARATIVELY NEGLIGENT NO LONGER PRECLUDES SUMMARY JUDGMENT (SECOND DEPT).

The Second Department determined plaintiff, a passenger in a stopped car struck from behind by a bus, was entitled to summary judgment against the bus defendants. The court noted that whether the car in which plaintiff was a passenger stopped quickly did not preclude summary judgment: The [bus defendants’] assertion that the vehicle [in which […]

PETITION FOR A REFERENDUM CONCERNING THE SALE OF TOWN LAND FOR THE DEVELOPMENT OF A RECREATIONAL PARK SHOULD NOT HAVE BEEN INVALIDATED, THE PETITION MET THE REQUIREMENTS OF TOWN LAW 91 (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the petition for a referendum concerning the sale by the town of land to be used for a recreational park should not have been invalidated, and a vote on the referendum should be held: … [T]he petition sheets set forth the purpose for which each elector signed, […]

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QUESTIONS OF FACT WHETHER THE WORK ON A BOILER WAS ROUTINE MAINTENANCE (NOT COVERED BY LABOR LAW 240 (1)) AND WHETHER A SAFETY DEVICE WAS REQUIRED, CONTRACTOR’S DEFAULT CONSTITUTED AN ADMISSION TO THE ALLEGATIONS IN THE COMPLAINT, INCLUDING THAT PLAINTIFF SUFFERED A GRAVE INJURY (TAKING THE INJURY OUT FROM UNDER THE WORKERS’ COMPENSATION LAW) (SECOND DEPT).

The Second Department determined there were questions of fact about whether the disassembly of a boiler was maintenance (not covered by Labor Law 240(1)) or repair (which is covered) and whether a safety device was required to stabilize a portion of the boiler which fell and injured plaintiff. The court also determined that the striking […]

PLAINTIFF WAS NOT ENGAGED IN ‘CLEANING’ WITHIN THE MEANING OF LABOR LAW 240 (1) WHEN SHE FELL FROM A LADDER, DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT PROPERLY GRANTED (SECOND DEPT).

The Second Department determined the “cleaning” being done by plaintiff when she fell from a ladder was not covered by Labor Law 240 (1): The plaintiff was an employee of a cleaning services company which was hired to clean a condominium apartment following a renovation by the defendant Morgan Interiors, Inc. (hereinafter Morgan Interiors). On […]

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ANY CONDUCT ON THE PART OF THE INSURER WAS NOT THE PROXIMATE CAUSE OF PLAINTIFF’S CLOSING OF ITS BUSINESS AFTER INCURRING WATER DAMAGE, THEREFORE THE INSURER WAS NOT LIABLE FOR THE LOSS OF BUSINESS CONSEQUENTIAL DAMAGES (SECOND DEPT).

The Second Department determined the insurer was entitled to summary judgment because, notwithstanding the way the insurer handled the water damage claim, the insurer’s actions were not the proximate cause of the plaintiff’s closing of its business: Consequential damages are damages that do not directly flow from a breach of contract … . Proximate cause […]

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BANK’S MOTION TO CHANGE THE CAPTION IN THIS FORECLOSURE PROCEEDING SHOULD NOT HAVE BEEN GRANTED, NO ADMISSIBLE PROOF OF AN ASSIGNMENT OF THE NOTE TO A NEW PLAINTIFF, AND NO PROCEDURAL STEPS TO REMOVE A DECEASED DEFENDANT FROM THE ACTION WERE TAKEN (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank’s motion to change the caption in this foreclosure action to substitute and new bank plaintiff (FNMA) and eliminate one of the defendants who had died should not have been granted. The motion papers did not demonstrate with admissible evidence that the note had been assigned to […]

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MORTGAGE WAS AMBIGUOUS BECAUSE IT DESCRIBED THE SUBJECT PROPERTY BY A SINGLE LOT NUMBER AND BY METES AND BOUNDS WHICH ENCOMPASSED TWO LOTS, QUESTION OF FACT ABOUT THE INTENT OF THE PARTIES PRECLUDED SUMMARY JUDGMENT (SECOND DEPT).

The Second Department determined there was a question of fact about the intent of the parties with respect to the property to which the plaintiff’s mortgage applied. The mortgage indicated the subject property by lot number and by metes and bounds. The metes and bounds description encompassed two lots: Real Property Law § 240(3) provides […]

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QUESTION OF FACT WHETHER PLAINTIFF BANK HAD POSSESSION OF THE NOTE AT THE TIME THE FORECLOSURE ACTION WAS COMMENCED, THE DOCUMENTARY EVIDENCE SUBMITTED BY PLAINTIFF CONTRADICTED THE DATE OF POSSESSION DESCRIBED IN PLAINTIFF’S AFFIDAVIT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined there were questions of fact about whether plaintiff had standing to bring the foreclosure action. i.e., whether it had possession of the note at the time the action was brought: Here, the plaintiff produced the mortgage, the unpaid note, and evidence of [defendant’s] default. However, the plaintiff failed, […]

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TRANSFER OF DEVELOPMENT RIGHTS (TDR) COMPONENT OF TOWN’S COMPREHENSIVE PLAN WAS NOT PROPERLY ADOPTED UNDER THE GENERAL MUNICIPAL LAW (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the transfer of development rights (TDR) component of its comprehensive plan was not properly adopted under the General Municipal Law: The instant hybrid proceeding/action challenges the Town Board’s adoption of Local Law No. 12 (2005), which amended the Town’s zoning code to implement the transfer of development rights […]

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