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BECAUSE THERE WAS ONLY ONE ORIGINAL WILL, NOT MULTIPLE ORIGINALS, THE INABILITY TO FIND A WILL UPON DECEDENT’S DEATH DID NOT GIVE RISE TO THE PRESUMPTION OF REVOCATION BY THE DECEDENT (FOURTH DEPT).

The Fourth Department affirmed Surrogate’s Court’s finding that there was only one original will, a finding made upon remittal from the Court of Appeals. Because no will was found upon decedent’s death, and because, in the initial Surrogate’s Court proceeding, there was conflicting evidence about whether there was one will, with three copies, or four original […]

February 9, 2018 by

ABUTTING PROPERTY OWNER PROPERLY GRANTED A LICENSE PURSUANT TO REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL) 881 TO ENTER NEIGHBOR’S PROPERTY TO PAINT A FENCE (FOURTH DEPT).

The Fourth Department determined Supreme Court properly granted petitioner a license pursuant to Real Property Actions and Proceedings Law (RPAPL) 881 to enter respondent’s property to paint petitioner’s fence. The fact that petitioner built the fence too close to the property line did not preclude the granting of the license: ​ … [W]e conclude that, […]

February 9, 2018 by
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PLAINTIFF’S ASSERTION OF A NEW THEORY OF LIABILITY IN THE PAPERS ANSWERING DEFENDANT HOSPITAL’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN CONSIDERED, SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the hospital’s (Crouse Hospital’s) motion for summary judgment in this medical malpractice action should have been granted. The defendant doctor was not a hospital employee and no hospital employee was named in the complaint or bill of particulars. The plaintiff, in answering the hospital’s summary judgment motion, claimed […]

February 9, 2018 by
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ALTHOUGH THE RESIDENT SEVERED PLAINTIFF’S NERVE DURING SURGERY, THE RESIDENT WAS UNDER THE SUPERVISION OF PLAINTIFF’S SURGEON AND EXERCISED NO INDEPENDENT JUDGMENT, MALPRACTICE ACTION AGAINST THE RESIDENT SHOULD HAVE BEEN DISMISSED (FOURTH DEPT).

The Fourth Department, modifying Supreme Court, determined the medical malpractice against the resident (O’Donnell) who assisted the plaintiff’s surgeon (Weise) should have been dismissed. Although the resident severed a nerve during the bone drilling procedure, the resident was under the supervision of the surgeon and exercised no independent judgment. Therefore the action against the resident […]

February 9, 2018 by

PLAINTIFF STRUCK BY A LACROSSE BALL THROWN BY A COACH DURING PRACTICE, THE ACTION WAS NOT PRECLUDED BY EITHER THE SIGNED WAIVER OR THE DOCTRINE OF ASSUMPTION OF THE RISK (FOURTH DEPT).

The Fourth Department determined plaintiff lacrosse player’s action was not barred by a waiver or the doctrine of assumption of the risk. Plaintiff was in a ground ball drill when a coach through a ball at her head, injuring her. The coach’s act was arguably grossly negligent, reckless or intentional, and therefore not covered by […]

February 9, 2018 by

QUESTION OF FACT WHETHER BEGINNING SAILOR ASSUMED THE RISK OF INJURY WHEN TRYING TO RIGHT A CAPSIZED BOAT, DEFENDANTS PROVIDED NO CAPSIZE-RECOVERY TRAINING (FOURTH DEPT).

The Fourth Department determined defendants’ motion for summary judgment was properly denied because there was a question of fact whether the assumption of the risk defense applied in this boating accident case. Plaintiff was in a beginner’s sailing program. Her boat capsized and she was struck by the boom when she attempt to right it. […]

February 9, 2018 by

QUESTIONS OF FACT WHETHER (1) DEFENDANT WAS A GENERAL CONTRACTOR OR AGENT OF THE OWNER, (2) WHETHER DEFENDANT HAD CONTROL OVER THE WORK SITE AND NOTICE OF A DANGEROUS CONDITION, AND (3) WHETHER THE INJURY WAS THE RESULT OF THE ABSENCE OR FAILURE OF A SAFETY DEVICE IN THIS LABOR LAW 240 (1), 241 (6) AND 200 ACTION (FOURTH DEPT).

The Fourth Department, over a two-justice partial dissent, determined that there were questions of fact whether defendant BGB was liable under Labor Law 240 (1) and 241 (6) as a general contractor or agent of the owner, and whether BGB was liable under Labor Law 200 because of its control over the work site and […]

February 9, 2018 by
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FAMILY COURT SHOULD NOT HAVE REFUSED TO ALLOW A SETTLEMENT OF THIS CHILD SUPPORT PROCEEDING, MOTHER AGREED FATHER’S JAIL SENTENCE SHOULD BE SUSPENDED IN RETURN FOR FATHER’S AGREEMENT TO PAY (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined Family Court should not have refused to allow a settlement of this child support proceeding by stipulation. The court had directed that father be jailed for six months for failure to pay child support. Mother agreed that the jail sentence should be suspended in return for immediate payment […]

February 9, 2018 by
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NONPARTY, WHICH WISHED TO PURCHASE PROPERTY FOR USE AS A LAND FILL, PROPERLY ALLOWED TO INTERVENE IN A LAWSUIT BY THE PROPERTY OWNERS SEEKING TO DECLARE INVALID A LOCAL LAW WHICH PROHIBITED EXPANSION OF THE LAND FILL (FOURTH DEPT).

The Fourth Department determined a waste management company (Sealand), which had sought to purchase property for use as a land fill, was properly allowed to intervene in an action to determine the validity of a local law which prohibited expansion of the existing land fill: ​ Upon a timely motion, a nonparty is permitted to […]

February 9, 2018 by

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