The Third Department determined plaintiff's false imprisonment action against the state was properly dismissed. Although there were errors resuliting in the erroneous calculation of defendant's sentence, the erroneous actions were privileged: In order to state a claim for false imprisonment or unlawful confinement, claimant was required to demonstrate that (1) defendant intended to confine him, (2) he was conscious […]
The Third Department annulled at determination which resulted from the interception of the inmate’s mail, finding that the “mail watch” authorization was invalid: A superintendent of a correctional facility may authorize a mail watch only where “there is a reason to believe that the provisions of any department directive, rule or regulation have been violated, […]
The Third Department determined an insurance company’s (Erie’s) attempt to rely on plaintiff’s personal injury complaint as the basis of its subrogation claim for property damage was properly dismissed. The insured’s house exploded due to a gas leak. Next to the insured’s house was a garage owned by the insured. Erie paid $50,000 for damage […]
The First Department determined the defendant (Gary) was not entitled to summary judgment. Gary was the managing member of a Limited Liability Company (LLC) and was sued by a nonmanaging member. Gary argued that, under the Limited Liability Company Law (section 409), he was entitled to rely on the advice of an accountant, and that the cause […]
The Third Department determined there was a question of fact about whether defendant driver’s (Slawiendski’s) gesture indicating a second defendant driver (Shaut) could make a left turn in front of him was the proximate cause of plaintiff’s collision with the turning car: …[T]he duty of a driver to act reasonably in signaling to another driver that he […]
The Third Department determined the City (respondents) did not demonstrate church-owned property was no longer used for religious purposes. Therefore the City could not revoke the tax-exempt status of the property: Although the burden of proof in tax exemption matters ordinarily lies with the party seeking an exemption, a municipality seeking to withdraw an existing exemption […]
The Third Department determined the beneficiaries of an estate had stated a cause of action to recoup property for an estate (the role of the executor). The complaint alleged misappropriation of decedent’s assets and included a cause of action against the executor (DiMaggio) for breach of fiduciary duty: Initially, we note that, absent extraordinary circumstances, […]
The Second Department determined Supreme Court had properly found that California, rather than New York, was the appropriate forum for determining child custody and visitation matters: A court of this State which has jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (Domestic Relations Law art 5-A) may decline to exercise jurisdiction if it […]
In a full-fledged opinion by Justice Austin, the Second Department determined the so-called “Prompt Pay Law” (Insurance Law 3224-a) affords an implied private right of action. The law, therefore, can be enforced by a private lawsuit based upon its breach. The defendant insurance company (First United) argued only the NYS Insurance Department could enforce the statute. […]
The Second Department determined a question of fact had been raised about whether a property transfer was procured by fraud. If so, the deed and the related mortgage would be void with respect to the mortgagee/incumbrancer (Wells Fargo). There was evidence the mortgagee was on notice about the possible fraud and there was evidence of fraud […]
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