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ISSUING A PERMIT FOR THE WITHDRAWAL OF UP TO 1.5 BILLION GALLONS OF RIVER WATER PER DAY TO COOL A POWER PLANT IS NOT A MINISTERIAL, NON-DISCRETIONARY ACT, THEREFORE THE STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA) APPLIES TO THE PERMITTING PROCESS (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Connolly, reversing Supreme Court, determined that the Department of Environmental Conservation's (DEC's) issuance of a permit for the withdrawal of up to 1.5 billion gallons of river water (per day) to cool an electric power plant was not a ministerial, non-discretionary act. Therefore the permitting process […]

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NEGLIGENT SUPERVISION CAUSE OF ACTION AGAINST SCHOOL SHOULD NOT HAVE SURVIVED SCHOOL’S MOTION FOR SUMMARY JUDGMENT, PLAINTIFF KINDERGARTEN STUDENT TRIPPED CARRYING A LUNCH TRAY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant school's (Board of Education's) motion for summary judgment in this negligent supervision action should have been granted. The four-year-old plaintiff tripped and fell as she was carrying a food tray: “Schools are under a duty to adequately supervise the students in their charge and they will be […]

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DEFENDANT’S STATEMENT TO A NEWSPAPER WAS NOT LIBELOUS BECAUSE IT FELL WITHIN THE JUDICIAL PRIVILEGE, THE STATEMENT WOULD BE UNDERSTOOD TO REFER TO AN ALLEGATION IN A LAWSUIT (FIRST DEPT).

The First Department determined that defendant's statement to the Wall Street Journal was within the judicial privilege: Defendant['s]  … statement to the Wall Street Journal, that plaintiff investment advisor “just took our money,” fell within the statutory privilege against libel claims for the publication of a fair and true report of a judicial proceeding… . […]

DENIAL OF PAROLE WAS IRRATIONAL, SUPREME COURT REVERSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the Parole Board's denial of parole was irrational. When petitioner was 17 he murdered a 14-year-old acquaintance. While in prison petitioner earned three college degrees and was deemed a low risk pursuant to the Correctional Offender Management for Profiling for Alternative Sanction (COMPAS) assessment: Judicial review of a determination […]

THE ABSENCE OF A PRICE FOR INTERNET SERVICE IN THE CONTRACT FOR THE PURCHASE OF SATELLITE TELEVISION SERVICE RENDERED THE CONTRACT AN UNENFORCEABLE AGREEMENT TO AGREE (SECOND DEPT).

The Second Department determined defendant's motion for summary judgment in this contract action was properly granted. The agreement for the purchase of satellite television equipment was silent about fees for Internet service, which constituted a material term. Therefore the agreement was merely an unenforceable agreement to agree: “To create a binding contract, there must be […]

DEFENDANT WAS ENTITLED TO A HEARING ON HER MOTION TO DISMISS THE COMPLAINT FOR FAILURE OF PROPER SERVICE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant was entitled to a hearing about whether the complaint should be dismissed for failure to properly serve her: “A process server's affidavit of service ordinarily constitutes prima facie evidence of proper service” … . “Bare and unsubstantiated denials are insufficient to rebut the presumption of service” … […]

ATTORNEY ENTITLED TO FEES PURSUANT TO QUANTUM MERUIT DESPITE FAILURE TO FILE A RETAINER STATEMENT AND THE ABSENCE OF A FEE SHARING AGREEMENT (SECOND DEPT).

The Second Department determined petitioner-attorney was entitled to fees earned in a medical malpractice action prior to the petitioner's suspension and disbarment. Petitioner sought the fees from substitute counsel (DMR) under a quantum meruit theory. Petitioner's failure to file a retainer statement and the absence of a fee-sharing agreement did not preclude quantum meruit recovery: […]

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NEITHER THE ABUTTING PROPERTY OWNER NOR THE CITY WERE ENTITLED TO SUMMARY JUDGMENT IN THIS SIDEWALK SLIP AND FALL CASE (SECOND DEPT).

The Second Department determined neither the abutting property owner nor the city were entitled to summary judgment in this sidewalk slip and fall case. The property owner did not demonstrate it did not have a duty to maintain the sidewalk and it did not have constructive knowledge of the defect. The city demonstrated it did […]

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THIRD PARTY COMPLAINT PROPERLY DISMISSED AS CAUSING UNDUE DELAY OF THE MAIN ACTION, DISCOVERY OF POST-ACCIDENT REPAIRS OF STAIRWAY PROPERLY ORDERED IN THIS SLIP AND FALL CASE (SECOND DEPT).

The Second Department determined plaintiff's motion to dismiss the third-party complaint was properly granted because the third-party action was commenced four years after the suit began and would unduly delay the main action. The Second Department also determined that Supreme Court properly ordered that defendants disclose information about post-accident repairs in this stairway slip and […]

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EXPERT AFFIDAVIT STATING PLAINTIFF PEDESTRIAN DID NOT LOOK FOR TRAFFIC BEFORE CROSSING WAS SPECULATIVE AND DID NOT RAISE A QUESTION OF FACT, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT PROPERLY GRANTED IN THIS TRAFFIC ACCIDENT CASE (SECOND DEPT).

The Second Department determined an expert affidavit, saying the plaintiff pedestrian did not look for traffic before starting across the street, was speculative and did not raise a question of fact. Plaintiff's motion for summary judgment properly granted: The plaintiff testified that she looked in both directions and saw no vehicles. When the pedestrian signal […]

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