The Second Department determined that a defaulting defendant could not compel plaintiff to submit to an independent medical examination: Although ” a defaulting defendant is entitled to present testimony and evidence and cross-examine the plaintiff’s witnesses at the inquest on damages,’ a defendant forfeits the right to discovery by defaulting in answering the complaint” … […]
The Second Department determined that a stairwell leading to the basement of defendant’s restaurant, which was partially covered by a piece of wood, did not constitute an unreasonably dangerous condition. Plaintiff fell down the stairwell after leaving a nearby bar by the back door and climbing over a fence: A landowner has a duty to […]
The Second Department determined that the mortgage lender failed to submit adequate proof of the value of the property for purposes of entering a deficiency judgment: RPAPL 1371(2) permits a mortgage lender to enter a deficiency judgment for the amount owed “less the market value as determined by the court or the sale price of […]
In perhaps the most complicated decision this writer has ever read, the Second Department reversed many of Supreme Court’s rulings and sorted out the defense and indemnification responsibilities for an astounding array of insurance companies. The lawsuits arose from the intrusion of water and mold into a complex of rental apartments causing the termination of […]
Failure to properly serve opposing party with objections to Support Magistrate’s order precludes a consideration of the merits of the objections and appellate review: Family Court Act § 439 provides, in pertinent part, that “[a] party filing objections shall serve a copy of such objections upon the opposing party,” and that “[p]roof of service upon […]
The Second Department determined petitioners did not have standing to bring an action alleging violations of the State Environmental Quality Review Act (SEQRA) because petitioners’ properties were not sufficiently close to the location of the development project: To establish standing under SEQRA, a petitioner must show (1) an environmental injury that is in some way […]
The Second Department, over a dissent, determined that the defendant’s waiver of appeal was knowingly, voluntarily and intelligently made. The defendant was asked by the prosecutor if he understood he was waiving the right to appeal his conviction and sentence to “the Appellate Division, Second Department.” Because the defendant was 27 years old, had prior […]
In reversing Supreme Court, the Second Department noted that a court’s power to dismiss a complaint sua sponte should rarely be used and further noted that a purported lack of standing is not a jurisdictional defect warranting sua sponte dismissal: The Supreme Court improvidently exercised its discretion in, sua sponte, directing the dismissal of the […]
The First Department determined there were questions of fact about whether the landlord assumed a duty to cover a baseboard heating unit, whether the landlord created an unsafe condition by removing the baseboard heating unit’s cover, and whether the uncovered unit needed repairs or was defective. The infant plaintiff, who suffers from mental retardation and […]
In a full-fledged opinion by Justice Acosta, over a dissent, the First Department determined a (hearsay) statement by a witness indicating she (not the defendant) was driving when the property-damage accident occurred should have been admitted as a statement against penal interest. The central question was whether the declarant was aware she was admitting to […]
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