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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 […]

THE PROMISE TO REPAY THE LOAN WAS NOT UNCONDITIONAL BUT RATHER THE DEFENDANT’S HAVING AVAILABLE CASH TO REPAY THE LOAN WAS A CONDITION PRECEDENT, BECAUSE PLAINTIFF DID NOT DEMONSTRATE THE DEFENDANT HAD AVAILABLE CASH, ITS MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined that summary judgment should not have been awarded to the plaintiff (Related) in this breach of contract action. The agreement provided that loan payments be made to plaintiff by the defendant (Tesla) from available cash. The existence of available cash was deemed a condition precedent. Because plaintiff could […]

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PURPORTED DISSOLUTION OF THE PARTNERSHIP VIOLATED THE PARTNERSHIP AGREEMENT, PLAINTIFFS NOT ENTITLED TO ATTORNEY’S FEES, GOODWILL REDUCTION SUPPORTED BY THE RECORD, MINORITY DISCOUNT APPLIED (CT APP).

The Court of Appeals, in a comprehensive opinion by Judge Fahey, over a two-judge partial dissenting opinion, determined that the defendant’s attempt to dissolve a partnership violated the partnership agreement, the plaintiffs were not entitled to attorney’s fees, the reduction for goodwill was supported by the record, the lack-of-marketability discount issue was not preserved, and […]

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IN THIS LONG TERM ENVIRONMENTAL CONTAMINATION CASE, THE INSURER IS NOT LIABLE TO THE INSURED FOR LOSSES ATTRIBUTABLE TO TIME PERIODS WHEN LIABILITY INSURANCE WAS UNAVAILABLE (CT APP).

The Court of Appeals, affirming the Appellate Division, in a full-fledged opinion by Judge Stein, determined the insured, Keyspan Gas, not the insurer, Century, bore the risk of damages from environmental contamination during the years that coverage for such damage was not available: The liability underlying this insurance dispute emanates from environmental contamination caused by […]

UNAMBIGUOUS POLICY LANGUAGE REQUIRED A WRITTEN CONTRACT WITH ANY ADDITIONAL INSURED, BECAUSE THERE WAS NO WRITTEN CONTRACT, THERE WAS NO COVERAGE (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Stein, over an extensive two-judge dissent, determined that the language of the policy which required a written contract with an additional insured (Gilbane JV) was unambiguous and precluded coverage: The relevant portion of the Liberty policy is the “Additional Insured-By Written Contract” provision, which reads: […]

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THERE WAS SUPPORT IN THE RECORD FOR THE LOWER COURTS’ FINDING THE ARRESTING OFFICERS COMPLIED WITH THE DEBOUR STREET STOP REQUIREMENTS, A MIXED QUESTION OF LAW AND FACT, EXTENSIVE DISSENTING OPINION (CT APP).

The Court of Appeals, in a short memorandum decision, over an extensive two-judge dissenting opinion by Judge Rivera, determined the record supported the trial court’s finding that the stop and search of the defendant, in an apartment building, met the DeBour street stop criteria: Police were conducting a vertical patrol of a New York City Housing Authority […]

MAJORITY DEEMED THE DISMISSAL OF THE BB GUN POSSESSION CHARGE PRIOR TO SUBMITTING THE HANDGUN POSSESSION CHARGE TO THE JURY PROPER, STRONG DISSENT ARGUED THE DEFENDANT’S ADMISSION OF POSSESSION OF THE BB GUN TAINTED THE JURY’S CONSIDERATION OF THE MORE SERIOUS CHARGE (CT APP).

The Court of Appeals, in a brief memorandum decision, over a comprehensive two-judge dissenting opinion by Judge Rivera, affirmed defendant’s conviction for unlawful possession of a weapon. Defendant was charged with possession of a BB gun and a handgun (Taurus). The judge dismissed the BB gun charge prior to submission of the handgun charge to the jury: […]

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