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PLAINTIFF WAS INJURED WHILE ON THE GROUND CUTTING A TREE, BECAUSE GRAVITY WAS NOT INVOLVED LABOR LAW 240 (1) DID NOT APPLY, BUT BECAUSE CUTTING THE TREE WAS ANCILLARY TO WORK ON A STRUCTURE, LABOR LAW 241 (6) DID APPLY (SECOND DEPT).

The Second Department, modifying Supreme Court, determined defendant’s motion for summary judgment on plaintiff’s Labor Law 240 (1) cause of action was properly granted, but defendant’s motion for summary judgment on plaintiff’s Labor Law 241 (6) cause of action should have been denied. Plaintiff was on the ground cutting a fallen tree when the tree […]

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HOMEOWNER WAIVED THE DEFENSE OF LACK OF PERSONAL JURISDICTION, JUDGE SHOULD NOT HAVE, SUA SPONTE, DISMISSED THE FORECLOSURE ACTION ON THAT GROUND (SECOND DEPT).

The Second Department, reversing Supreme Court in this foreclosure proceeding, determined the homeowner had waived the defense of lack of personal jurisdiction and therefore the judge erred by, sua sponte, dismissing the complaint on that ground: The Supreme Court erred in sua sponte raising and considering the defense of lack of personal jurisdiction. The homeowner […]

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PLAINTIFF’S TWICE FILING FOR BANKRUPTCY TOLLED THE STATUTE OF LIMITATIONS FOR OVER FOUR YEARS, FORECLOSURE ACTION WAS THEREFORE TIMELY (SECOND DEPT).

The Second Department determined plaintiff’s twice filing for bankruptcy tolled the statute of limitations for the foreclosure action, making the foreclosure action timely. Therefore, the bank’s motion to dismiss plaintiff’s Real Property Actions and Proceedings Law (RPAPL) 1501 action to cancel and discharge the mortgage was properly granted: Section 362 of the 1978 Bankruptcy Code (11 […]

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ALTHOUGH THE STATUTE OF LIMITATIONS FOR THE FORECLOSURE ACTION WAS TOLLED WHEN THE BANKRUPTCY PROCEEDINGS WERE ACTIVE, IT WAS NOT TOLLED WHEN A TEMPORARY RESTRAINING ORDER PROHIBITING SALE OF THE PROPERTY WAS IN EFFECT, FORECLOSURE ACTION WAS THEREFORE TIME-BARRED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the statute of limitations for bringing a foreclosure action, although tolled when bankruptcy proceedings were active, was not tolled when a temporary restraining order prohibiting the sale of the property was in effect. Therefore the foreclosure action was time-barred: Under CPLR 204(a), “[w]here the commencement of an […]

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PLAINTIFF STATED A CAUSE OF ACTION FOR AGE DISCRIMINATION UNDER THE NYC HUMAN RIGHTS LAW, CAUSE OF ACTION ALLEGING A VIOLATION OF FREE SPEECH RIGHTS UNDER THE STATE CONSTITUTION REQUIRED A NOTICE OF CLAIM, AMENDMENT OF THE COMPLAINT TO ALLEGE A FIRST AMENDMENT RETALIATION CAUSE OF ACTION UNDER 42 USC 1983, WHICH DOES NOT REQUIRE A NOTICE OF CLAIM, SHOULD HAVE BEEN ALLOWED (SECOND DEPT).

The Second Department, modifying Supreme Court, determined (1) plaintiff, an administrative law judge for the New York City Department of Consumer Affairs, stated a cause of action for age discrimination under the NYC Human Rights Law (NYCHRL), (2) plaintiff’s failure to file a Notice of Claim required dismissal of the cause of action alleging a free […]

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LAWSUITS ALLEGING STATUTES CONCERNING THE HIRING AND FIRING OF TEACHERS HAVE LED TO THE RETENTION OF INEFFECTIVE TEACHERS AND THE CONSEQUENT VIOLATION OF THE RIGHT TO A SOUND BASIC EDUCATION PROPERLY SURVIVED MOTIONS TO DISMISS (SECOND DEPT).

The Second Department determined two lawsuits (the Davids plaintiffs and the Wright plaintiffs) brought on behalf of New York public school students, alleging that certain statutes and policies concerning the hiring and firing of teachers leads to the retention of ineffective teachers, properly survived motions to dismiss. The statutes were alleged to violate the right […]

EGREGIOUS CIRCUMSTANCES JUSTIFIED SUMMARY JUDGMENT IN FAVOR OF DEFENDANT DRIVER PURSUANT TO THE EMERGENCY DOCTRINE (FIRST DEPT).

The First Department determined defendant Dominguez’s motion for summary judgment pursuant to the emergency doctrine was properly granted. The court noted that the emergency doctrine usually presents a question of fact but the egregious circumstances warranted summary judgment here. Plaintiff was a passenger in Chuquillanqui’s vehicle which was struck by a car driven by Dominguez: […]

ALTHOUGH RESPONDENT WAS NOT MARRIED TO THE TENANT OF RECORD, THEIR RELATIONSHIP EXHIBITED THE CARE AND SELF-SACRIFICE OF A FAMILY RELATIONSHIP, HOUSING COURT SHOULD HAVE FOUND THAT RESPONDENT WAS A FAMILY MEMBER ENTITLED TO SUCCESSION RIGHTS IN THE RENT-STABILIZED APARTMENT (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Moulton, reversing Housing Court, determined that the relationship between the tenant of record (Montgomery) in a rent-stabilized apartment and respondent (Zenker) justified the finding that Zenker was a “family member” entitled to succession rights. Although Zenker and Montgomery were not married, their relationship exhibited the care […]

PROPERTY OWNER, AS AN ADDITIONAL INSURED UNDER THE SECURITY COMPANY’S POLICY, WAS NOT ENTITLED TO COVERAGE FOR A SECURITY GUARD’S SLIP AND FALL ON A RECENTLY MOPPED FLOOR, THE ADDITIONAL INSURED WAS THE SOLE PROXIMATE CAUSE OF THE INJURY (FIRST DEPT).

The First Department, reversing Supreme Court, determined coverage for a slip and fall of a security company (Protection Plus) employer was not available to the property owner (Manhattan School) as an additional insured on the security company’s policy. the security guard slipped and fell on a recently mopped floor at the school: Plaintiff Manhattan School […]

PLACING DEFENDANT IN HANDCUFFS ELEVATED THE INVESTIGATORY STOP TO AN ILLEGAL ARREST, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing defendant’s conviction, determined placing the defendant in handcuffs improperly elevated an investigatory detention to an illegal arrest and the suppression motion should have been granted. The court noted that Supreme Court explicitly found that the detective did not have probable cause to arrest at the time of the handcuffing so the […]

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