The First Department, in a full-fledged opinion by Justice Acosta, in a case sent back by the Court of Appeals, affirmed Supreme Court’s dismissal of the shareholder’s derivative causes of action. The derivative action was initially dismissed for failure to comply with a Cayman Islands rule. The Court of Appeals held that the rule was […]
The First Department, modifying Supreme Court, determined that, although it did not sufficiently allege the breach of a fiduciary duty, the complaint by shareholders alleged the breach of the “sufficient information duty” owed to shareholders by the directors: The complaint … fails to allege “a special factual relationship between the directors and the shareholders … […]
The Second Department, modifying Supreme Court, determined defendant’s motion to amend its answer should have been granted. No evidentiary showing of merit is required: In the absence of “prejudice or surprise resulting directly from the delay in seeking leave” to amend a pleading, such applications “are to be freely granted unless the proposed amendment is […]
The Fourth Department, modifying Supreme Court, determined the town respondents violated General Municipal Law 239-m by not referring an application for an area variance by respondent mining operation to the planning board. The violation was a jurisdictional defect that did not trigger the 30-day statute of limitations: “General Municipal Law § 239-m requires that a […]
The Fourth Department, reversing Supreme Court, determined that defendant purchaser did not forfeit the downpayment under the real estate purchase agreement based upon the bank’s revocation of the commitment letter: “When a mortgage commitment letter is revoked by the lender after the contingency period, in contrast to the failure to obtain a commitment letter in […]
The Fourth Department, reversing Supreme Court, over a two-justice dissent, determined that the sophisticated intermediary doctrine did not apply as a matter of law to this failure to warn case. Under the doctrine the manufacturer of the silica product at issue would be under a duty to warn plaintiff’s employer, a sophisticated intermediary, but not […]
The Fourth Department, modifying Supreme Court, granted the defendant general contractor’s motion for summary judgment in this common law negligence and Labor Law 200 action. The Fourth Department further found that the plaintiff’s Labor Law 241(6) and Vehicle and Traffic Law 388 causes of action were properly dismissed. Plaintiff worked for the property owner, GTO, […]
The Fourth Department, reversing Family Court, determined the Department of Social Services made reasonable efforts to prevent or eliminate the need for the temporary removal of the children while the neglect petition is pending. The court noted that Family Court did not have the power to find a foster home for the family’s cat: … […]
The Fourth Department, annulling the respondent-college’s determination and expunging the petitioner-student’s record, determined the finding that the petitioner had nonconsensual sex with another student was not supported by substantial evidence: Respondent sanctioned petitioner by placing him on persona non grata status, barring him from the college campus, and making a notation of a disciplinary violation […]
The Fourth Department, modifying Supreme Court, determined, inter alia, that there were questions of fact whether a note and guaranties were ratified, despite forged signatures: It is well established that a forged instrument may be ratified where “the principal retains the benefit of an unauthorized transaction with knowledge of the material facts” … . The evidence submitted […]
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