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APPLICATIONS FOR A NATURAL RESOURCES SPECIAL PERMIT AND A VARIANCE FOR THE CONSTRUCTION OF RETAINING WALLS IN AN AREA OF PROTECTED BEACH VEGETATION PROPERLY DENIED, DIFFERENCE BETWEEN A NATURAL RESOURCES SPECIAL PERMIT AND A VARIANCE EXPLAINED (SECOND DEPT).

The Second Department determined the zoning board of appeals (ZBA) properly denied petitioner’s application for a natural resources special permit for the construction of retaining walls. The walls had been construction without applying for the permit. The petitioner’s application for a variance was properly denied because the criteria for a variance are more stringent than the criteria […]

JURY SHOULD NOT HAVE BEEN INSTRUCTED ON THE AUTOMOBILE PRESUMPTION OF POSSESSION OF A WEAPON, THE WEAPON WAS SEEN IN THE POSSESSION OF A PASSENGER IN THE CAR (SECOND DEPT).

The Second Department, reversing defendant’s possession of a weapon convictions, determined the jury should not have been instructed on the automobile presumption of possession of a weapon. The weapon was seen in the possession of a passenger: Both police officers who pursued the vehicle being driven by the defendant testified that the gun was seen […]

NOTICE OF CROSS MOTION DID NOT INCLUDE THE RELIEF SOUGHT OR THE GROUNDS FOR RELIEF AS REQUIRED BY CPLR 2214 (a), CROSS MOTION PROPERLY DISMISSED (SECOND DEPT).

The Second Department determined Supreme Court properly dismissed a cross-motion for failure to specify the relief sought and the grounds for relief as required by CPLR 2214 (a): CPLR 2214(a) provides that a notice of motion shall “specify the time and place of the hearing on the motion, the supporting papers upon which the motion is […]

SUMMARY JUDGMENT PROPERLY GRANTED ON THE LABOR LAW 240 (1) CAUSE OF ACTION BASED UPON A FALL FROM AN UNSECURED LADDER, IT DID NOT MATTER WHETHER PLAINTIFF LOST HIS BALANCE BEFORE OF AFTER THE LADDER WOBBLED (FIRST DEPT).

The First Department determined plaintiff’s motion for summary judgment on the Labor Law 240 (1) cause of action was properly granted. The complaint alleged the unsecured ladder wobbled while plaintiff was attempting to install steel wall panels. The court offered a particularly clear explanation of liability stemming from the use of unsecured ladders: …[P]laintiff … […]

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ALTHOUGH THE COMPLAINT BY SHAREHOLDERS AGAINST DIRECTORS DID NOT SUFFICIENTLY ALLEGE THE BREACH OF A FIDUCIARY DUTY, IT DID ALLEGE A BREACH OF THE SUFFICIENT INFORMATION DUTY (FIRST DEPT).

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 … […]

NO EVIDENTIARY SHOWING OF MERIT REQUIRED TO AMEND ANSWER, MOTION TO AMEND SHOULD HAVE BEEN GRANTED IN THE ABSENCE OF PREJUDICE (SECOND DEPT).

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 […]

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ZONING BOARD’S FAILURE TO REFER THE AREA VARIANCE APPLICATION TO THE PLANNING BOARD AS REQUIRED BY THE GENERAL MUNICIPAL LAW WAS A JURISDICTIONAL DEFECT, DETERMINATION GRANTING THE VARIANCE VACATED (FOURTH DEPT).

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 […]

DOWNPAYMENT NOT FORFEITED BASED UPON THE BANK’S REVOCATION OF THE MORTGAGE COMMITMENT, NO SHOWING THE REVOCATION WAS DUE TO DEFENDANT PURCHASER’S BAD FAITH (FOURTH DEPT).

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 […]

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SOPHISTICATED INTERMEDIARY DOCTRINE DOES NOT APPLY AS A MATTER OF LAW IN THIS SILICA INHALATION FAILURE TO WARN PRODUCTS LIABILITY CASE, QUESTION OF FACT WHETHER DEFENDANT LIABLE FOR FAILURE TO WARN PLAINTIFF EMPLOYEE, DESPITE ANY KNOWLEDGE OF THE DANGER ON THE PART OF PLAINTIFF’S EMPLOYER (FOURTH DEPT).

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 […]

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