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QUESTION OF FACT WHETHER PLAINTIFF WAS COMPARATIVELY NEGLIGENT IN THIS LABOR LAW 241(6) ACTION, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, modifying Supreme Court, determined plaintiff’s motion for summary judgment in this Labor Law 241 (6) action should not have been granted because there was a question of fact about plaintiff’s comparative negligence: ​ Plaintiff’s testimony that he slipped on water on the floor of the stairwell where he was working establishes prima […]

INSURER OF A BUS OBLIGATED TO DEFEND AND INDEMNIFY THE BUS COMPANY IN AN ACTION BROUGHT BY A PASSENGER WHO FELL ATTEMPTING TO PICK UP HER LUGGAGE OUTSIDE THE BUS (FIRST DEPT).

The First Department, reversing Supreme Court, determined the insurer of a Peter Pan bus was obligated to defend and indemnify the bus company in an action brought by a passenger who fell attempting to pick up her luggage outside the bus: ​ The insurance policy issued by defendant to Peter Pan provides coverage for damages […]

INSURER OF A BUS OBLIGATED TO DEFEND AND INDEMNIFY THE BUS COMPANY IN AN ACTION BROUGHT BY A PASSENGER WHO FELL ATTEMPTING TO PICK UP HER LUGGAGE OUTSIDE THE BUS (FIRST DEPT).

The First Department, reversing Supreme Court, determined the insurer of a Peter Pan bus was obligated to defend and indemnify the bus company in an action brought by a passenger who fell attempting to pick up her luggage outside the bus: ​ The insurance policy issued by defendant to Peter Pan provides coverage for damages […]

CHILD BORN TO SAME-GENDER MARRIED COUPLE AFTER ARTIFICIAL INSEMINATION IS ENTITLED TO THE PRESUMPTION OF LEGITIMACY, DOCTRINE OF EQUITABLE ESTOPPEL REQUIRED DISMISSAL OF THE SPERM DONOR’S PATERNITY PETITION (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Mulvey, reversing Family Court, determined: (1) the presumption of legitimacy applies to a child born to a same-gender married couple after artificial insemination; (2) the presumption was not rebutted; (3) ordering a paternity test was not in the best interests of the child; and (4) the doctrine […]

YOUTHFUL OFFENDER DETERMINATION MUST BE MADE IN EVERY CASE WHERE DEFENDANT IS ELIGIBLE, CARE REMITTED FOR THAT DETERMINATION (SECOND DEPT).

The Second Department noted that the sentencing court did not make a youthful offender determination, which must be made in every case where a defendant is eligible. The matter was remitted for the determination: ​ CPL 720.20(1) requires a court to make a youthful offender determination in every case where the defendant is eligible, even […]

QUESTIONS OF FACT WHETHER PAYMENT WAS PURSUANT TO AN ORAL CONTRACT, THEREBY TAKING THE CONTRACT OUT OF THE STATUTE OF FRAUDS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined there was a question of fact whether a payment was made on an oral contract, thereby taking the contract out of the statute of frauds. The written contract (Assignment of Units) mentioned only a transfer of ownership of Emerson Associates. But there was a question of fact whether […]

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THE DOCUMENTS SOUGHT IN DISCOVERY WERE PROTECTED BY THE COMMON INTEREST PRIVILEGE, AN EXCEPTION TO THE USUAL RULE RE: WAIVER OF ATTORNEY-CLIENT PRIVILEGE (SECOND DEPT).

The Second Department determined Supreme Court properly denied the motion to compel discovery because the requested documents were protected by the common interest privilege (an exception to the usual rule re: waiver of the attorney-client privilege): The common-interest privilege is an exception to the traditional rule that the presence of a third party waives the […]

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PLAINTIFF’S MOTION FOR A PRELIMINARY INJUNCTION PROPERLY DENIED, BUT COMPLAINT SHOULD NOT HAVE BEEN DISMISSED SUA SPONTE (SECOND DEPT).

The Second Department, modifying Supreme Court, determined defendant’s motion for a preliminary injunction was properly denied, but Supreme Court should not have dismissed the complaint sua sponte. The underlying action sought a declaratory judgment that plaintiff was the owner of shares of stock allocated to a cooperative apartment. The plaintiff moved for a preliminary injunction […]

INITIAL ATTEMPT TO SERVE DEFENDANT WAS TIMELY BUT DEFECTIVE, EVEN THOUGH THE STATUTE OF LIMITATIONS HAD RUN, SUPREME COURT PROPERLY GRANTED PLAINTIFF AN EXTENSION OF TIME TO EFFECT SERVICE (SECOND DEPT).

The Second Department determined Supreme Court properly allowed plaintiff to extend the time to serve the summons and complaint. The initial service was timely but defective. In the mean time, the statute of limitations had run: Generally, service of a summons and complaint must be made within 120 days after the commencement of the action […]

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ALTHOUGH THE CLADDING AND DRIP EDGE PLAINTIFF INSTALLED ON A PARTY WALL WAS A TRESPASS, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED ON THE DEFENDANT’S REQUEST FOR AN INJUNCTION DIRECTING THE REMOVAL OF THE CLADDING AND DRIP EDGE (SECOND DEPT).

The Second Department determined Supreme Court properly found that cladding and a drip edge plaintiff added to a party wall constituted a trespass. But Supreme Court should not have granted summary judgment on the issue whether defendant was entitled to an injunction directing plaintiffs to remove the cladding and drip edge: ​ … [T]he Supreme […]

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