You are here: / Second Department

Tag Archive for: Second Department

PLAINTIFF WALKED INTO THE REAR OF A TRACTOR TRAILER WHICH WAS MAKING A RIGHT TURN, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ (truck owner’s and driver’s) motion for summary judgment in this pedestrian traffic accident case should have been granted. Plaintiff was injured by the rear portion of a tractor trailer which had completed 85% of a right turn:

… [T]he plaintiff allegedly was walking on a sidewalk … . After she stepped off the sidewalk onto the street, her right foot came into contact with the rear of a tractor-trailer that was making a right turn. … The plaintiff allegedly did not see the tractor-trailer prior to the impact. …

… [T]he plaintiff was the sole proximate cause of the accident … . The evidence … established that the plaintiff failed to see what was there to be seen and walked into the path of the rear of the tractor-trailer. Faulknor v Gina’s Trucking, Inc., 2018 NY Slip Op 01045, Second Dept 2-14-18

NEGLIGENCE (PEDESTRIANS, TRAFFIC ACCIDENTS, PLAINTIFF WALKED INTO THE REAR OF A TRACTOR TRAILER WHICH WAS MAKING A RIGHT TURN, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/TRAFFIC ACCIDENTS (PEDESTRIANS, PLAINTIFF WALKED INTO THE REAR OF A TRACTOR TRAILER WHICH WAS MAKING A RIGHT TURN, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/PEDESTRIANS (TRAFFIC ACCIDENTS, PLAINTIFF WALKED INTO THE REAR OF A TRACTOR TRAILER WHICH WAS MAKING A RIGHT TURN, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))

,

LOCAL LAW REQUIRING A PERMIT FOR THE TRANSPORT OF WASTE WITHIN THE COUNTY WAS NOT PREEMPTED BY STATE LAW (WHICH ALSO REQUIRED A PERMIT) AND DID NOT VIOLATE THE COMMERCE CLAUSE, PETITIONER PROPERLY FINED FOR FAILURE TO OBTAIN A COUNTY PERMIT (SECOND DEPT).

The Second Department determined that the Westchester County Solid Waste Commission properly found that petitioner had not obtained a permit to allow the transport of waste within Westchester County and imposed a $15,000 fine. Petitioner had obtained a permit from the state Department of Environmental Conservation (DEC) and argued that the Westchester County law was preempted by the state law and violated the Commerce Clause. The Second Department rejected those arguments:

“The constitutional home rule provision confers broad police power upon local government relating to the welfare of its citizens”… . In instances where the State has demonstrated its intent to preempt an entire field and preclude any further local regulation, a local law that regulates the same subject matter is considered inconsistent and will not be given effect. “It is . . . well settled that, if a town or other local government is otherwise authorized to legislate, it is not forbidden to do so unless the State, expressly or impliedly, has evinced an unmistakable desire to avoid the possibility that the local legislation will not be on all fours with that of the State” … . The legislature’s intent to preempt a particular area can be inferred from a declaration of policy or from a comprehensive and detailed scheme in a particular area … . However, the fact that State and local laws touch upon the same area is insufficient to support a determination that the State law has preempted the entire field of regulation in a given area … .

In Monroe-Livingston Sanitary Landfill v Town of Caledonia (51 NY2d 679, 683-684), the Court of Appeals held that the State had not preempted the field of waste management through the solid waste disposal provisions that then existed in the Environmental Conservation Law. Eight years after the decision in Monroe-Livingston, the Legislature added the Solid Waste Management Act of 1988 (hereinafter the Act) to the Environmental Conservation Law. Had the Legislature intended to preempt the local regulation of solid waste management, it could have expressly said so in the Act. Matter of MVM Constr., LLC v Westchester County Solid Waste Commn., 2018 NY Slip Op 04731, Second Dept 6-27-18

​ENVIRONMENTAL LAW (LOCAL LAW REQUIRING A PERMIT FOR THE TRANSPORT OF WASTE WITHIN THE COUNTY WAS NOT PREEMPTED BY STATE LAW (WHICH ALSO REQUIRED A PERMIT) AND DID NOT VIOLATE THE COMMERCE CLAUSE, PETITIONER PROPERLY FINED FOR FAILURE TO OBTAIN A COUNTY PERMIT (SECOND DEPT))/MUNICIPAL LAW (ENVIRONMENTAL LAW, LOCAL LAW REQUIRING A PERMIT FOR THE TRANSPORT OF WASTE WITHIN THE COUNTY WAS NOT PREEMPTED BY STATE LAW (WHICH ALSO REQUIRED A PERMIT) AND DID NOT VIOLATE THE COMMERCE CLAUSE, PETITIONER PROPERLY FINED FOR FAILURE TO OBTAIN A COUNTY PERMIT (SECOND DEPT))/WASTE (ENVIRONMENTAL LAW, MUNICIPAL LAW, LOCAL LAW REQUIRING A PERMIT FOR THE TRANSPORT OF WASTE WITHIN THE COUNTY WAS NOT PREEMPTED BY STATE LAW (WHICH ALSO REQUIRED A PERMIT) AND DID NOT VIOLATE THE COMMERCE CLAUSE, PETITIONER PROPERLY FINED FOR FAILURE TO OBTAIN A COUNTY PERMIT (SECOND DEPT))

WHERE THERE IS NO PREJUDICE TO A DEFENDANT, PLAINTIFF’S MOTION FOR A VOLUNTARY DISCONTINUANCE WITHOUT PREJUDICE SHOULD BE GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that plaintiff’s motion for a voluntary discontinuance without prejudice should have been granted:

CPLR 3217(b) permits a voluntary discontinuance of a claim by court order “upon terms and conditions, as the court deems proper” (CPLR 3217[b]…). In general, absent a showing of special circumstances, including prejudice to a substantial right of the defendant or other improper consequences, a motion for a voluntary discontinuance should be granted without prejudice … .

Here, there was no evidence that the defendant would be prejudiced by a discontinuance without prejudice … . Kondaur Capital Corp. v Reilly, 2018 NY Slip Op 04707, Second Dept 6-27-18

​CIVIL PROCEDURE (DISCONTINUANCE, WHERE THERE IS NO PREJUDICE TO A DEFENDANT, PLAINTIFF’S MOTION FOR A VOLUNTARY DISCONTINUANCE WITHOUT PREJUDICE SHOULD BE GRANTED (SECOND DEPT))/DISCONTINUANCE (WHERE THERE IS NO PREJUDICE TO A DEFENDANT, PLAINTIFF’S MOTION FOR A VOLUNTARY DISCONTINUANCE WITHOUT PREJUDICE SHOULD BE GRANTED (SECOND DEPT))/VOLUNTARY DISCONTINUANCE (WHERE THERE IS NO PREJUDICE TO A DEFENDANT, PLAINTIFF’S MOTION FOR A VOLUNTARY DISCONTINUANCE WITHOUT PREJUDICE SHOULD BE GRANTED (SECOND DEPT))/CPLR 3217 (DISCONTINUANCE, WHERE THERE IS NO PREJUDICE TO A DEFENDANT, PLAINTIFF’S MOTION FOR A VOLUNTARY DISCONTINUANCE WITHOUT PREJUDICE SHOULD BE GRANTED (SECOND DEPT))

,

UTILITY BOX RECESSED IN CITY SIDEWALK WAS OPEN AND OBVIOUS AND NOT INHERENTLY DANGEROUS, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE PROPERLY GRANTED (SECOND DEPT).

The Second Department determined the utility box recessed into a city sidewalk was open and obvious and was not inherently dangerous. Defendants were therefore entitled to summary judgment in this slip and fall case:

There is ” no duty to protect against an open and obvious condition provided that, as a matter of law, the condition is not inherently dangerous'” … . “While the issue of whether a hazard is latent or open and obvious is generally fact-specific and thus usually a jury question, a court may determine that a risk was open and obvious as a matter of law when the established facts compel that conclusion, and may do so on the basis of clear and undisputed evidence” … . “Whether a hazard is open and obvious cannot be divorced from the surrounding circumstances” … .Similarly, the determination of whether “a condition is not inherently dangerous . . . depends on the totality of the specific facts of each case”… .

Here, contrary to the plaintiff’s contention, each of the defendants established, prima facie, that the complained-of condition “was open and obvious, as it was not only readily observable by those employing the reasonable use of their senses, but was known to [the decedent] prior to the accident and, as a matter of law, was not inherently dangerous” … . Graffino v City of New York, 2018 NY Slip Op 04702, Second Dept 6-27-18

​NEGLIGENCE (UTILITY BOX RECESSED IN CITY SIDEWALK WAS OPEN AND OBVIOUS AND NOT INHERENTLY DANGEROUS, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE PROPERLY GRANTED (SECOND DEPT))/MUNICIPAL LAW (NEGLIGENCE, UTILITY BOX RECESSED IN CITY SIDEWALK WAS OPEN AND OBVIOUS AND NOT INHERENTLY DANGEROUS, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE PROPERLY GRANTED (SECOND DEPT))/SLIP AND FALL UTILITY BOX RECESSED IN CITY SIDEWALK WAS OPEN AND OBVIOUS AND NOT INHERENTLY DANGEROUS, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE PROPERLY GRANTED (SECOND DEPT))/SIDEWALKS (SLIP AND FALL, UTILITY BOX RECESSED IN CITY SIDEWALK WAS OPEN AND OBVIOUS AND NOT INHERENTLY DANGEROUS, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE PROPERLY GRANTED (SECOND DEPT))/OPEN AND OBVIOUS (SLIP AND FALL, (UTILITY BOX RECESSED IN CITY SIDEWALK WAS OPEN AND OBVIOUS AND NOT INHERENTLY DANGEROUS, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE PROPERLY GRANTED (SECOND DEPT))

, ,

PLAINTIFFS’ CONCLUSORY ALLEGATION OF FRAUD DID NOT DEFEAT THE AGREEMENT TO ARBITRATE (SECOND DEPT).

The Second Department determined the arbitration clause of the contract between plaintiffs and defendant was enforceable, despite the plaintiffs’ allegation of fraud in connection with the contract:

A party may not be compelled to arbitrate a dispute unless there is evidence which affirmatively establishes that the parties clearly, explicitly, and unequivocally agreed to arbitrate the dispute… . Under both federal and New York law, unless it can be established that there was a grand scheme to defraud which permeated the entire agreement, including the arbitration provision, a broadly worded arbitration provision will be deemed separate from the substantive contractual provisions, and the agreement to arbitrate may be valid despite the underlying allegation of fraud … .

The broad arbitration clause in the 2014 agreement, together with the other provisions of the 2014 agreement, demonstrate that the plaintiffs explicitly and unequivocally agreed to arbitrate the matters that are the subject of this action. In addition, the plaintiffs’ bare conclusory assertions of fraud failed to establish that any alleged fraud was part of a grand scheme that permeated the entire agreement, including the arbitration clause … . Zafar v Fast Track Leasing, LLC, 2018 NY Slip Op 04774, Second Dept 6-27-18

ARBITRATION (CONTRACT LAW, FRAUD, PLAINTIFFS’ CONCLUSORY ALLEGATION OF FRAUD DID NOT DEFEAT THE AGREEMENT TO ARBITRATE (SECOND DEPT))/CONTRACT LAW (ARBITRATION, PLAINTIFFS’ CONCLUSORY ALLEGATION OF FRAUD DID NOT DEFEAT THE AGREEMENT TO ARBITRATE (SECOND DEPT))/FRAUD (ARBITRATION, CONTRACT LAW, PLAINTIFFS’ CONCLUSORY ALLEGATION OF FRAUD DID NOT DEFEAT THE AGREEMENT TO ARBITRATE (SECOND DEPT))

, , ,

FAILURE TO PLEAD A JURISDICTIONAL DEFECT AS A DEFENSE WAIVED THE DEFECT; WITHOUT EXPERT OPINION EVIDENCE, THE MEDICAL MALPRACTICE CAUSE OF ACTION WAS NOT PROVED (SECOND DEPT)

The Second Department noted that the defendant’s (NYS’s) failure to plead a jurisdictional defect as a defense (defendant had not timely filed and served notice of claim) waived the defect. The claimant did not present expert evidence to support the medical malpractice claim and therefore did not demonstrate that any alleged deviation from the accepted standard of care was the proximate case of his injury. The claimant alleged a negligent failure to diagnose a urinary tract infection (UTI):

“To establish a prima facie case of medical malpractice, a plaintiff must set forth (1) the standard of care in the locality where the treatment occurred, (2) that the defendant breached that standard of care, and (3) that the breach was the proximate cause of his or her injuries”… . Further, where, as here, the subject matter (UTIs) and treatment thereof are “not within the ordinary experience and knowledge of laypersons”… , the claimant must establish a prima facie case of medical malpractice through expert medical opinion … . Whitfield v State of New York, 2018 NY Slip Op 04773, Second Dept 6-27-18

COURT OF CLAIMS (FAILURE TO PLEAD A JURISDICTIONAL DEFECT AS A DEFENSE WAIVED THE DEFECT; WITHOUT EXPERT OPINION EVIDENCE, THE MEDICAL MALPRACTICE CAUSE OF ACTION WAS NOT PROVED (SECOND DEPT))/NOTICE OF CLAIM (COURT OF CLAIMS, FAILURE TO PLEAD A JURISDICTIONAL DEFECT AS A DEFENSE WAIVED THE DEFECT; WITHOUT EXPERT OPINION EVIDENCE, THE MEDICAL MALPRACTICE CAUSE OF ACTION WAS NOT PROVED (SECOND DEPT))/NEGLIGENCE (MEDICAL MALPRACTICE, WITHOUT EXPERT OPINION THE MEDICAL MALPRACTICE CAUSE OF ACTION WAS NOT PROVED (SECOND DEPT))/MEDICAL MALPRACTICE (EXPERT OPINION, WITHOUT EXPERT OPINION EVIDENCE, THE MEDICAL MALPRACTICE CAUSE OF ACTION WAS NOT PROVED (SECOND DEPT))/EVIDENCE (MEDICAL MALPRACTICE, WITHOUT EXPERT OPINION THE MEDICAL MALPRACTICE CAUSE OF ACTION WAS NOT PROVED (SECOND DEPT))/EXPERT OPINION (MEDICAL MALPRACTICE, WITHOUT EXPERT OPINION EVIDENCE, THE MEDICAL MALPRACTICE CAUSE OF ACTION WAS NOT PROVED (SECOND DEPT))

, ,

SUMMARY JUDGMENT SHOULD NOT HAVE BEEN AWARDED TO PLAINTIFF IN THIS SIDEWALK SLIP AND FALL CASE ON A THEORY RAISED IN REPLY PAPERS, CITY DEFENDANTS DID NOT DEMONSTRATE THEY HAD NO NOTICE OF THE CONDITION OR DID NOT CREATE THE CONDITION, EVIDENCE SUBMITTED BY THE CITY DEFENDANTS IN REPLY PAPERS COULD NOT BE CONSIDERED (SECOND DEPT).

The Second Department, modifying Supreme Court, determined (1) the court should not have searched the record and awarded summary judgment to the plaintiff in this sidewalk slip and fall case based upon a theory raised for the first time in reply papers, (2) the city defendants did not demonstrate that they did not have written notice of the condition or that they did not create the condition, and (3) evidence submitted by the city defendants for the first time in reply papers could not be considered with respect to a prima facie showing of entitlement to summary judgment:

The plaintiff alleged, for the first time in opposition to the motion and cross motion for summary judgment, that the defendants were strictly liable under an absolute nuisance theory. However, a plaintiff cannot defeat an otherwise proper motion for summary judgment by asserting, for the first time in opposition to the motion, a new theory of liability that was not pleaded in the complaint or bill of particulars … . …

… [T]he City defendants’ … “failed to demonstrate their prima facie entitlement to judgment as a matter of law on the ground that they had no prior written notice as they failed to submit proof of such lack of notice from the proper municipal official”…, or that they did not create the alleged dangerous condition through an affirmative act of negligence… . The evidence submitted by the City defendants for the first time in their reply papers cannot be considered for the purpose of determining whether they met their prima facie burden … . Troia v City of New York, 2018 NY Slip Op 04770, Second Dept 6-27-18

NEGLIGENCE (SLIP AND FALL, MUNICIPAL LAW, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN AWARDED TO PLAINTIFF IN THIS SIDEWALK SLIP AND FALL CASE ON A THEORY RAISED IN REPLY PAPERS, CITY DEFENDANTS DID NOT DEMONSTRATE THEY HAD NO NOTICE OF THE CONDITION OR DID NOT CREATE THE CONDITION, EVIDENCE SUBMITTED BY THE CITY DEFENDANTS IN REPLY PAPERS COULD NOT BE CONSIDERED (SECOND DEPT))/MUNICIPAL LAW (SLIP AND FALL, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN AWARDED TO PLAINTIFF IN THIS SIDEWALK SLIP AND FALL CASE ON A THEORY RAISED IN REPLY PAPERS, CITY DEFENDANTS DID NOT DEMONSTRATE THEY HAD NO NOTICE OF THE CONDITION OR DID NOT CREATE THE CONDITION, EVIDENCE SUBMITTED BY THE CITY DEFENDANTS IN REPLY PAPERS COULD NOT BE CONSIDERED (SECOND DEPT))/CIVIL PROCEDURE (SUMMARY JUDGMENT SHOULD NOT HAVE BEEN AWARDED TO PLAINTIFF IN THIS SIDEWALK SLIP AND FALL CASE ON A THEORY RAISED IN REPLY PAPERS, CITY DEFENDANTS DID NOT DEMONSTRATE THEY HAD NO NOTICE OF THE CONDITION OR DID NOT CREATE THE CONDITION, EVIDENCE SUBMITTED BY THE CITY DEFENDANTS IN REPLY PAPERS COULD NOT BE CONSIDERED (SECOND DEPT))/REPLY PAPERS (SUMMARY JUDGMENT SHOULD NOT HAVE BEEN AWARDED TO PLAINTIFF IN THIS SIDEWALK SLIP AND FALL CASE ON A THEORY RAISED IN REPLY PAPERS, CITY DEFENDANTS DID NOT DEMONSTRATE THEY HAD NO NOTICE OF THE CONDITION OR DID NOT CREATE THE CONDITION, EVIDENCE SUBMITTED BY THE CITY DEFENDANTS IN REPLY PAPERS COULD NOT BE CONSIDERED (SECOND DEPT))/SUMMARY JUDGMENT (REPLY PAPERS, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN AWARDED TO PLAINTIFF IN THIS SIDEWALK SLIP AND FALL CASE ON A THEORY RAISED IN REPLY PAPERS, CITY DEFENDANTS DID NOT DEMONSTRATE THEY HAD NO NOTICE OF THE CONDITION OR DID NOT CREATE THE CONDITION, EVIDENCE SUBMITTED BY THE CITY DEFENDANTS IN REPLY PAPERS COULD NOT BE CONSIDERED (SECOND DEPT))/SLIP AND FALL (SUMMARY JUDGMENT SHOULD NOT HAVE BEEN AWARDED TO PLAINTIFF IN THIS SIDEWALK SLIP AND FALL CASE ON A THEORY RAISED IN REPLY PAPERS, CITY DEFENDANTS DID NOT DEMONSTRATE THEY HAD NO NOTICE OF THE CONDITION OR DID NOT CREATE THE CONDITION, EVIDENCE SUBMITTED BY THE CITY DEFENDANTS IN REPLY PAPERS COULD NOT BE CONSIDERED (SECOND DEPT))/SIDEWALKS (SLIP AND FALL, MUNICIPAL LAW, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN AWARDED TO PLAINTIFF IN THIS SIDEWALK SLIP AND FALL CASE ON A THEORY RAISED IN REPLY PAPERS, CITY DEFENDANTS DID NOT DEMONSTRATE THEY HAD NO NOTICE OF THE CONDITION OR DID NOT CREATE THE CONDITION, EVIDENCE SUBMITTED BY THE CITY DEFENDANTS IN REPLY PAPERS COULD NOT BE CONSIDERED (SECOND DEPT))

, ,

CHILD PORNOGRAPHY CONVICTIONS REVERSED AS AGAINST THE WEIGHT OF THE EVIDENCE, DEFENDANT DID NOT WAIVE HIS RIGHT TO CHALLENGE THE VOLUNTARINESS OF THE STATEMENT AT TRIAL BY WAIVING A PRE-TRIAL HUNTLEY HEARING (SECOND DEPT).

The Second Department, reversing defendant’s child pornography convictions and dismissing the indictment, determined the convictions were against the weight of the evidence. The defendant, who speaks Spanish, gave a written statement in English acknowledging he had downloaded child pornography. However, it was revealed at trial that the police provided information that was in the statement and made changes to the statement without defendant’s permission. The defendant had waived a pre-trial Huntley hearing on the voluntariness of the statement, informing the judge he intended to challenge the voluntariness of the statement at trial. The judge, in this bench trial, erroneously ruled defendant had waived his right to challenge the statement a trial. The defendant testified that he did not download the child pornography and that he gave the statement to protect a family member. A family member testified and admitted “unintentionally” downloading the files. Defendant produced evidence he was at work when at least two of the files were downloaded:

The convictions were based on the defendant’s alleged acts of downloading and/or sharing 15 video files and 2 still images, on multiple dates. The People introduced into evidence, inter alia, a written statement in English that the defendant made to law enforcement officials. In that statement, the defendant acknowledged having downloaded approximately 5 videos containing child pornography; he did not specify the names or descriptions of the materials, or the dates of the actions. The defendant’s written statement included the name of the program used to download contraband materials to this computer, as well as a term allegedly used in titles of child pornography files, but a police investigator acknowledged that he had supplied those terms. Apart from the defendant’s statement to the police, the prosecution adduced no other evidence showing that it was the defendant who had downloaded and/or shared the subject materials, consisting of 15 video files and 2 still photographs, on specific dates and times. …

Although we ordinarily accord great deference to the factfinder’s opportunity to view the witnesses, hear the testimony, and observe demeanor…, under the circumstances of this case, we give no deference to the County Court’s assessment of the defendant’s credibility on the issue of the voluntariness of his statements to law enforcement officials, as the court erroneously precluded the defendant from contesting the voluntariness of the written statement during the trial, contrary to his statutory and constitutional right to do so … . People v Vasquez, 2018 NY Slip Op 04761, Second Dept 6-27-18

CRIMINAL LAW (CHILD PORNOGRAPHY CONVICTIONS REVERSED AS AGAINST THE WEIGHT OF THE EVIDENCE, DEFENDANT DID NOT WAIVE HIS RIGHT TO CHALLENGE THE VOLUNTARINESS OF THE STATEMENT AT TRIAL BY WAIVING A PRE-TRIAL HUNTLEY HEARING (SECOND DEPT))/APPEALS (CRIMINAL LAW, WEIGHT OF THE EVIDENCE, CHILD PORNOGRAPHY CONVICTIONS REVERSED AS AGAINST THE WEIGHT OF THE EVIDENCE, DEFENDANT DID NOT WAIVE HIS RIGHT TO CHALLENGE THE VOLUNTARINESS OF THE STATEMENT AT TRIAL BY WAIVING A PRE-TRIAL HUNTLEY HEARING (SECOND DEPT))/WEIGHT OF THE EVIDENCE (CRIMINAL LAW, CHILD PORNOGRAPHY CONVICTIONS REVERSED AS AGAINST THE WEIGHT OF THE EVIDENCE, DEFENDANT DID NOT WAIVE HIS RIGHT TO CHALLENGE THE VOLUNTARINESS OF THE STATEMENT AT TRIAL BY WAIVING A PRE-TRIAL HUNTLEY HEARING (SECOND DEPT))/CHILD PORNOGRAPHY (CRIMINAL LAW, CHILD PORNOGRAPHY CONVICTIONS REVERSED AS AGAINST THE WEIGHT OF THE EVIDENCE, DEFENDANT DID NOT WAIVE HIS RIGHT TO CHALLENGE THE VOLUNTARINESS OF THE STATEMENT AT TRIAL BY WAIVING A PRE-TRIAL HUNTLEY HEARING (SECOND DEPT))/VOLUNTARINESS OF STATEMENT (CRIMINAL LAW, CHILD PORNOGRAPHY CONVICTIONS REVERSED AS AGAINST THE WEIGHT OF THE EVIDENCE, DEFENDANT DID NOT WAIVE HIS RIGHT TO CHALLENGE THE VOLUNTARINESS OF THE STATEMENT AT TRIAL BY WAIVING A PRE-TRIAL HUNTLEY HEARING (SECOND DEPT))/HUNTLEY HEARING LAW (CHILD PORNOGRAPHY CONVICTIONS REVERSED AS AGAINST THE WEIGHT OF THE EVIDENCE, DEFENDANT DID NOT WAIVE HIS RIGHT TO CHALLENGE THE VOLUNTARINESS OF THE STATEMENT AT TRIAL BY WAIVING A PRE-TRIAL HUNTLEY HEARING (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, (CHILD PORNOGRAPHY CONVICTIONS REVERSED AS AGAINST THE WEIGHT OF THE EVIDENCE, DEFENDANT DID NOT WAIVE HIS RIGHT TO CHALLENGE THE VOLUNTARINESS OF THE STATEMENT AT TRIAL BY WAIVING A PRE-TRIAL HUNTLEY HEARING (SECOND DEPT))

THE RELATIONSHIP BETWEEN PLAINTIFF AND DEFENDANT WAS NOT CLOSE ENOUGH TO ALLOW AN UNJUST ENRICHMENT ACTION, DEFENDANT’S ACTIONS COULD NOT HAVE CAUSED PLAINTIFF’S RELIANCE OR INDUCEMENT (SECOND DEPT

The Second Department determined the relationship between plaintiff and defendant (Trovato) was not close enough to allow an unjust enrichment suit. Plaintiff had paid for shares in a corporation which were later sold to defendant. Plaintiff alleged the price paid by defendant was reduced by the amount plaintiff had already paid:

To recover for unjust enrichment, a plaintiff must show that (1) the defendant was enriched, (2) at the plaintiff’s expense, and (3) that it is against equity and good conscience to permit the defendant to retain what is sought to be recovered… . “Although privity is not required for an unjust enrichment claim, a claim will not be supported if the connection between the parties is too attenuated” … . The relationship must be one that could have caused reliance or inducement … . Here, the defendant established her prima facie entitlement to judgment as a matter of law by demonstrating that the plaintiff and Trovato did not have a relationship that could have caused reliance or inducement on the plaintiff’s part. Crescimanni v Trovato, 2018 NY Slip Op 04529, Second Dept 6-20-28

​UNJUST ENRICHMENT (THE RELATIONSHIP BETWEEN PLAINTIFF AND DEFENDANT WAS NOT CLOSE ENOUGH TO ALLOW AN UNJUST ENRICHMENT ACTION, DEFENDANT’S ACTIONS COULD NOT HAVE CAUSED PLAINTIFF’S RELIANCE OR INDUCEMENT (SECOND DEPT))/PRIVITY (UNJUST ENRICHMENT, THE RELATIONSHIP BETWEEN PLAINTIFF AND DEFENDANT WAS NOT CLOSE ENOUGH TO ALLOW AN UNJUST ENRICHMENT ACTION, DEFENDANT’S ACTIONS COULD NOT HAVE CAUSED PLAINTIFF’S RELIANCE OR INDUCEMENT (SECOND DEPT))

, ,

BANK WAS REQUIRED TO GIVE DEFENDANT NOTICE OF ITS MOTIONS FOR AN ORDER OF REFERENCE AND JUDGMENT OF FORECLOSURE BECAUSE DEFENDANT’S DEFAULT OCCURRED MORE THAN A YEAR BEFORE, DEFENDANT’S MOTION TO VACATE SHOULD HAVE BEEN GRANTED, FAILURE OF NOTICE PROPERLY RAISED FOR THE FIRST TIME ON APPEAL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that plaintiff bank was required to provide notice of its motions for an order of reference and a judgment of foreclosure which were made more than a year after defendant’s default. Therefore defendant’s motion to vacate the order of reference and judgment of foreclosure should have been granted. The court noted that the failure of notice was properly raised for the first time on appeal:

The defendant was entitled to notice of the plaintiff’s motions for an order of reference and for a judgment of foreclosure and sale pursuant to CPLR 3215(g)(1), which provides, in relevant part, that such notice to a defendant who has not appeared is required “if more than one year has elapsed since the default.” Here, the defendant defaulted in November 2009, and the plaintiff moved for an order of reference in March 2013, more than three years later. Contrary to the plaintiff’s contention, the issue of its failure to comply with CPLR 3215(g)(1) may be raised for the first time on appeal … . The failure to give a party proper notice of a motion deprives the court of jurisdiction to entertain the motion and renders the resulting order void … . Citimortgage, Inc. v Reese, 2018 NY Slip Op 04527, Second Dept 6-20-18

​FORECLOSURE (BANK WAS REQUIRED TO GIVE DEFENDANT NOTICE OF ITS MOTIONS FOR AN ORDER OF REFERENCE AND JUDGMENT OF FORECLOSURE BECAUSE DEFENDANT’S DEFAULT OCCURRED MORE THAN A YEAR BEFORE, DEFENDANT’S MOTION TO VACATE SHOULD HAVE BEEN GRANTED, FAILURE OF NOTICE PROPERLY RAISED FOR THE FIRST TIME ON APPEAL (SECOND DEPT))/CIVIL PROCEDURE (FORECLOSURE, BANK WAS REQUIRED TO GIVE DEFENDANT NOTICE OF ITS MOTIONS FOR AN ORDER OF REFERENCE AND JUDGMENT OF FORECLOSURE BECAUSE DEFENDANT’S DEFAULT OCCURRED MORE THAN A YEAR BEFORE, DEFENDANT’S MOTION TO VACATE SHOULD HAVE BEEN GRANTED, FAILURE OF NOTICE PROPERLY RAISED FOR THE FIRST TIME ON APPEAL (SECOND DEPT))/CPLR 3215 (FORECLOSURE, BANK WAS REQUIRED TO GIVE DEFENDANT NOTICE OF ITS MOTIONS FOR AN ORDER OF REFERENCE AND JUDGMENT OF FORECLOSURE BECAUSE DEFENDANT’S DEFAULT OCCURRED MORE THAN A YEAR BEFORE, DEFENDANT’S MOTION TO VACATE SHOULD HAVE BEEN GRANTED, FAILURE OF NOTICE PROPERLY RAISED FOR THE FIRST TIME ON APPEAL (SECOND DEPT))

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy