The Second Department determined summary judgment should not have been granted to the defendants in a slip and fall case. Plaintiff tripped on a dolly or “pallet jack” which was low to the ground and had been left in an aisle of defendants’ store. The fact that the presence of the dolly was open and […]
The Second Department determined defendants were not entitled to summary judgment dismissing plaintiff’s Labor Law 240(1) action. Plaintiff fell from a 20-foot ladder while cleaning windows. The defendants were unable to demonstrate that the activity plaintiff was engaged in was not covered by Labor Law 240(1): Labor Law § 240(1) provides protection for those workers […]
The Second Department determined there were questions of fact whether the Long Island Power Authority (LIPA) was required to retrieve documents pursuant to petitioner’s Freedom of Information Law (FOIL) request. The court explained the applicable criteria: The Legislature has declared that “government is the public’s business and that the public, individually and collectively and represented […]
The Second Department determined defense counsel’s failure to request that the jury be charged with an affirmative defense constituted ineffective assistance: …[T]he defendant was deprived of the effective assistance of counsel, under both the federal and state constitutions, as a result of his trial counsel’s failure to request that the trial court submit to the […]
The Second Department determined Supreme Court properly dismissed an action against a Vermont ski business (Killington) because plaintiffs failed demonstrate a basis for New York’s long-arm jurisdiction. The court noted that advertising in New York and the existence of an interactive website through which out-of-state residents make reservations for participation in the defendant’s ski camp […]
The Second Department, in a full-fledged opinion by Justice Leventhal, determined that Supreme Court had properly found that plaintiff bank did not negotiate in good faith a mortgage modification pursuant to the Home Affordable Mortgage Program (HAMP) (CPLR 3408). In the course of the opinion, the court described the applicable “good faith” standard: …[W]e hold […]
The Second Department determined defendant’s answer was properly struck due to defendant’s failure to comply with the court’s orders concerning discovery: “[A] trial court is given broad discretion to oversee the discovery process” … . When a party fails to comply with a court order and frustrates the disclosure scheme set forth in the CPLR, […]
In reversing Supreme Court, the Second Department determined the law firm which represented the wife in a divorce was entitled to a charging lien for outstanding legal fees (to be paid from the proceeds of the upcoming sale of the marital residence). However, in the absence of a plenary action, the law firm was not […]
In a full-fledged opinion by Justice Saxe, the First Department determined that the relatives of persons buried in defendant cemetery did not have standing to sue as beneficiaries of a charitable trust which was supposed to ensure perpetual care of the cemetery plots. [However, one of the plaintiffs, who himself was a donor to the […]
The First Department noted that a dog’s growling and baring its teeth is not sufficient evidence to raise a question of fact re: the dog’s vicious propensities: No court has found that a dog’s growling at one or two other dogs is sufficient to establish vicious propensities, and the Third Department has specifically held that […]
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