The Third Department determined plaintiff, a public figure, had raised questions of fact about whether defamatory advertisements were done with malice: Plaintiff was a public figure … and, as such, he must prove by clear and convincing evidence that defendant made a false statement with actual malice … . Distinguishing actionable fact from a protected […]
The Third Department determined Family Court’s neglect finding was supported by evidence mother did not seek needed dental and medical care for her child and suffered from psychological problems which created an imminent risk of harm to the child: To establish neglect, a petitioner must demonstrate, by a preponderance of the evidence, that the child’s […]
In finding that a settlement agreement was not ambiguous and had been complied with by the mother, the Third Department explained the status of a separation agreement which is incorporated but not merged into a judgment of divorce: A settlement agreement that is incorporated into, but not merged with, a judgment of divorce remains an […]
The Third Department determined plaintiff did not make out a prima facie case of legal malpractice because there was no allegation the causes of action would have been successful but for the alleged malpractice: …[D]efendants correctly argue that Supreme Court should have granted their motion to dismiss the legal malpractice claim. It is well established […]
The Third Department determined Family Court should not have granted summary judgment finding derivative neglect. Despite the recent finding of neglect of three other children (by consent), there were questions of fact about whether the conditions leading to the previous neglect determination were being addressed: Family Court erred in granting summary judgment because triable issues […]
The Third Department determined petitioner’s application to set aside a tax foreclosure judgment was timely, but determined the application was properly denied because the notice of the foreclosure proceeding was adequate, even though petitioner, the actual owner of the property, was not notified. Petitioner, a religious organization, had transferred the property by deed to Forbes, […]
The Second Department determined Family Court should have terminated father’s child support obligation because the child was “constructively emancipated: ””It is fundamental public policy in New York that parents are responsible for their children’s support until age 21″ … . “However, under the doctrine of constructive emancipation, a child of employable age who actively abandons […]
The Second Department determined defendant was not entitled to summary judgment dismissing the complaint on the ground that the condition causing plaintiff’s injury was open and obvious. Plaintiff stepped back when fireworks were being set off in defendant’s yard. Plaintiff tripped on blocks forming a border around a tree and was impaled on a wooden […]
The Second Department determined a defect which caused plaintiff to trip was “trivial” as a matter of law. The defect was a difference in height between two concrete slabs in a sidewalk: A property owner may not be held liable for trivial defects, not constituting a trap or nuisance, over which a pedestrian might merely […]
The Second Department reversed Supreme Court, finding that the setback lines drawn on a subdivision map were not reflected on the documents in defendants’ chain of title and, therefore, did not run with the land: “[T]he policy of the law is to favor free and unobstructed use of realty” … . “[A] purchaser takes with […]
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