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POLICE OFFICER’S EXPECTATION THAT DEFENDANT WOULD BE ARRESTED DID NOT HAVE ANY BEARING ON WHETHER DEFENDANT WAS IN CUSTODY, MOTION TO SUPPRESS STATEMENT PROPERLY DENIED (FIRST DEPT).

The First Department determined defendant was not in custody at the time he made statements, despite the presence of several police officers and one officer’s expectation that defendant would be arrested. Therefore defendant’s motion to suppress the statements was properly denied: ​ Although several officers were present, they did not have their guns drawn, did […]

PLAINTIFF MADE A SUFFICIENT SHOWING OF PERSONAL JURISDICTION OVER A NEW JERSEY RADIATION TREATMENT CLINIC TO BE ENTITLED TO DISCOVERY (FIRST DEPT).

The First Department determined plaintiff had sufficiently demonstrated personal jurisdiction over a New Jersey radiation therapy clinic (PPM) to be entitled to disclosure under both CPLR 301 (general jurisdiction) and 302 (specific jurisdiction): Plaintiff made a “sufficient start” in establishing that New York courts have jurisdiction over PPM under CPLR 301 and 302(a)(1) to be […]

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PLAINTIFF’S ACTION FOR BREACH OF CONTRACT, ALLEGING DEFENDANT-ATTORNEYS FAILED TO RETURN THE BALANCE OF THE FEE PAID AT THE CONCLUSION OF THE CASE, PROPERLY SURVIVED A MOTION TO DISMISS (FIRST DEPT).

The First Department determined defendant-attorneys’ motion to dismiss the breach of contract cause of action, alleging the failure to return the balance of fees paid, was properly denied. Plaintiff alleged there was an oral agreement to return any few balance remaining when the action was resolved. Defendants did not provide plaintiff with an accounting of […]

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PLAINTIFF ACTED AS A REAL ESTATE BROKER FOR BOTH BUYER AND SELLER, DUAL AGENCY WAS NOT DISCLOSED, PLAINTIFF NOT ENTITLED TO COMMISSION, STATEMENT IN COMPLAINT THAT PLAINTIFF WAS A BROKER WAS A JUDICIAL ADMISSION, PRECLUDING ANY CLAIM PLAINTIFF WAS MERELY A FINDER (FIRST DEPT).

The First Department determined plaintiff Zaccaro was a real estate broker, not a finder, and was not entitled to a real estate commission because plaintiff acted as a broker for the buyer and the seller (impermissible dual agency without full disclosure): ​ Plaintiffs’ argument that Zaccaro was merely a finder instead of a real estate […]

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PLAINTIFF PEDESTRIAN ENTITLED TO SUMMARY JUDGMENT IN THIS BUS-PEDESTRIAN ACCIDENT CASE, EVEN IF THE CROSSING LIGHT CHANGED WHILE PLAINTIFF WAS CROSSING HE WAS ENTITLED TO PROCEED (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment in this bus-pedestrian accident case should have been granted. The court noted that even if the cross signal changed while plaintiff was crossing, he was permitted to proceed once he started crossing: ​ Plaintiff established his entitlement to partial summary judgment through his […]

TOW TRUCK DEFENDANTS FURNISHED THE CONDITION FOR THE REAR-END COLLISION BUT TOW TRUCK WAS NOT THE PROXIMATE CAUSE, TOW TRUCK DEFENDANTS MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined that defendant’s tow truck merely furnished the condition for the rear-end collision and was not the proximate cause. The tow truck driver was in the process of hooking up a car (a Jetta) to tow it off the expressway when the Jetta was struck from behind by an […]

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QUESTION OF FACT WHETHER CITY CREATED THE ROADWAY SINKHOLE BY INADEQUATE REPAIR, COMPLAINT SHOULD NOT HAVE BEEN DISMISSED IN THIS TRAFFIC ACCIDENT CASE (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiffs had raised a question of fact whether the city created the dangerous condition, a sinkhole in the roadway, which caused plaintiffs injuries after a wheel on their police car went into the hole: ​ … [P]laintiffs have met their burden of showing that there are triable issues […]

UNDER THE MULTIPLE DWELLING LAW, LESSEE WAS NOT ENTITLED TO RENT FROM THE SUBTENANTS FOR THE PERIOD DURING WHICH THERE WAS NO CERTIFICATE OF OCCUPANCY (FIRST DEPT).

The First Department, reversing Supreme Court, determined that the subtenants (respondents), pursuant to the Multiple Dwelling Law, could not collect rent from the lessee (petitioner) for the period during which there was no certificate of occupancy: ​ Petitioner was the net lessee of the third floor of a six-story building, a de facto multiple dwelling; the net […]

LANDLORD BROUGHT EJECTMENT CAUSE OF ACTION AGAINST RENT REGULATED TENANT FOR RENTING TO AIRBNB CUSTOMERS, THE EJECTMENT CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, modifying Supreme Court, determined there was no basis to dismiss the ejectment cause of action which was based upon the rent-regulated tenant’s renting to Airbnb customers: ​ Plaintiff seeks to eject defendants based on their having illegally sublet rooms in their loft through the Airbnb website to numerous individuals, over a period of […]

PLAINTIFF PROPERLY AWARDED SUMMARY JUDGMENT IN THIS LABOR LAW 240(1) ACTION, HEAVY TRANSFORMER SHIFTED DOWNWARD STRIKING PLAINTIFF, NO SAFETY DEVICES PROVIDED (FIRST DEPT).

The First Department determined plaintiff was entitled to summary judgment in this Labor Law 240(1) action. Plaintiff was on a ladder working on a heavy suspended transformer when it shifted and struck him. Plaintiff demonstrated he was not provided with any adequate safety devices, and defendants did not demonstrate adequate safety devices were available: ​ […]

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