You are here: / Second Department

Tag Archive for: Second Department

INSURER WAS ENTITLED TO A FRAMED ISSUE HEARING TO DETERMINE WHETHER A HIT-AND-RUN VEHICLE WAS INVOLVED IN THE ACCIDENT (SECOND DEPT).

The Second Department determined the insurer (petitioner) was entitled to a framed issue hearing in this traffic accident case. The appellant was involved in a multi-vehicle accident but claimed he was cut off by a vehicle which left the scene. After a framed issue hearing was held to determine whether a hit-and-run vehicle was involved, appellant appealed arguing the insurer was not entitled to a framed issue hearing:

According to the appellant … , another vehicle, which he described as a “pick-up truck with a landscaping trailer attached,” initially struck his vehicle and then left the scene. Under a policy of insurance issued by the petitioner, the appellant demanded arbitration of his claim for uninsured motorist benefits for the injuries he allegedly sustained in the accident. The petitioner thereafter commenced this proceeding, inter alia, to permanently stay arbitration of the appellant’s claim. …

” The party seeking a stay of arbitration has the burden of showing the existence of sufficient evidentiary facts to establish a preliminary issue which would justify the stay'” …  “Thereafter, the burden shifts to the party opposing the stay to rebut the prima facie showing” … . “Where a triable issue of fact is raised, the Supreme Court, not the arbitrator, must determine it in a framed-issue hearing, and the appropriate procedure under such circumstances is to temporarily stay arbitration pending a determination of the issue” … . “Physical contact is a condition precedent to an arbitration based upon a hit-and-run accident involving an unidentified vehicle” … . ” The insured has the burden of establishing that the loss sustained was caused by an uninsured vehicle, namely, that physical contact occurred, that the identity of the owner and operator of the offending vehicle could not be ascertained, and that the insured’s efforts to ascertain such identity were reasonable'”… .

Here, the petitioner, by submitting the police accident report containing the appellant’s statement that his vehicle was cut off by an unknown vehicle with a red trailer, raised a triable issue of fact as to whether physical contact occurred between the appellant’s vehicle and the alleged unidentified hit-and-run vehicle … . Contrary to the appellant’s contention, the Supreme Court properly directed a framed-issue hearing to determine whether a hit-and-run vehicle was involved in the accident  … . Matter of Allstate Ins. Co. v Deleon, 2018 NY Slip Op 01915, Second Dept 3-21-18

INSURANCE LAW (TRAFFIC ACCIDENTS, FRAMED ISSUE HEARING, INSURER WAS ENTITLED TO A FRAMED ISSUE HEARING TO DETERMINE WHETHER A HIT-AND-RUN VEHICLE WAS INVOLVED IN THE ACCIDENT (SECOND DEPT))/TRAFFIC ACCIDENTS (INSURANCE LAW, FRAMED ISSUE HEARING, INSURER WAS ENTITLED TO A FRAMED ISSUE HEARING TO DETERMINE WHETHER A HIT-AND-RUN VEHICLE WAS INVOLVED IN THE ACCIDENT (SECOND DEPT))/FRAMED ISSUE HEARING (INSURANCE LAW, TRAFFIC ACCIDENTS, INSURER WAS ENTITLED TO A FRAMED ISSUE HEARING TO DETERMINE WHETHER A HIT-AND-RUN VEHICLE WAS INVOLVED IN THE ACCIDENT (SECOND DEPT))/ARBITRATION, STAY OF (INSURANCE LAW, TRAFFIC ACCIDENTS, FRAMED ISSUE HEARING, INSURER WAS ENTITLED TO A FRAMED ISSUE HEARING TO DETERMINE WHETHER A HIT-AND-RUN VEHICLE WAS INVOLVED IN THE ACCIDENT (SECOND DEPT))/HIT-AND-RUN (INSURANCE LAW, TRAFFIC ACCIDENTS, FRAMED ISSUE HEARING,  INSURER WAS ENTITLED TO A FRAMED ISSUE HEARING TO DETERMINE WHETHER A HIT-AND-RUN VEHICLE WAS INVOLVED IN THE ACCIDENT (SECOND DEPT))

,

DEFENDANT RAISED A QUESTION OF FACT WHETHER THE BANK MADE A REASONABLE EFFORT TO REACH A RESOLUTION AT THE SETTLEMENT CONFERENCE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant (Nimkoff) was entitled to a hearing on whether plaintiff bank (Hudson City Savings Bank) made a good faith effort to resolve the foreclosure action pursuant to CPLR 3408 (f):

… Nimkoff submitted … his own affidavit in which he averred that the plaintiff refused to negotiate with him for the stated reason that another entity, Hudson City Savings Bank (hereinafter Hudson City), was the holder of the mortgage and did not allow loan modifications. In opposition, the plaintiff contended that its counsel properly appeared at the two foreclosure settlement conferences and advised the court that Hudson City does not participate in the home affordable modification program. The plaintiff submitted … the master mortgage loan purchase and servicing agreement (hereinafter PSA) between the plaintiff and Hudson City to establish that the plaintiff was the servicer of the subject mortgage and Hudson City was the purchaser. However, the PSA also authorized the plaintiff to modify the terms of the subject mortgage loan with Hudson City’s consent. In any event, the statute requires the parties to negotiate in good faith to reach a mutually agreeable resolution. There is no evidence in the record that the plaintiff attempted to gain Hudson City’s consent to offer a loan modification or offered Nimkoff another nonretention solution, such as a deed in lieu of foreclosure. In fact, there is no evidence in the record that any effort was made to reach a resolution at the two foreclosure settlement conferences. Citimortgage, Inc. v Nimkoff, 2018 NY Slip Op 01900, Second Dept 3-21-18

FORECLOSURE (SETTLEMENT CONFERENCE, DEFENDANT RAISED A QUESTION OF FACT WHETHER THE BANK MADE A REASONABLE EFFORT TO REACH A RESOLUTION AT THE SETTLEMENT CONFERENCE (SECOND DEPT))/CIVIL PROCEDURE (FORECLOSURE, SETTLEMENT CONFERENCE, DEFENDANT RAISED A QUESTION OF FACT WHETHER THE BANK MADE A REASONABLE EFFORT TO REACH A RESOLUTION AT THE SETTLEMENT CONFERENCE (SECOND DEPT))/SETTLEMENT CONFERENCE (FORECLOSURE, DEFENDANT RAISED A QUESTION OF FACT WHETHER THE BANK MADE A REASONABLE EFFORT TO REACH A RESOLUTION AT THE SETTLEMENT CONFERENCE (SECOND DEPT))/CPLR 3408 (f) (FORECLOSURE, SETTLEMENT CONFERENCE, DEFENDANT RAISED A QUESTION OF FACT WHETHER THE BANK MADE A REASONABLE EFFORT TO REACH A RESOLUTION AT THE SETTLEMENT CONFERENCE (SECOND DEPT))

,

ALTHOUGH THE FIRST FORECLOSURE ACTION SHOULD NOT HAVE BEEN DISMISSED, DEFENDANT WAS NOT RESPONSIBLE FOR THE ACCRUAL OF INTEREST DURING THE FOUR YEARS UNTIL THE FORECLOSURE ACTION WAS REFILED, DEFENDANT’S MOTION TO AMEND THE ANSWER TO ADD THE DEFENSE OF LACK OF STANDING SHOULD HAVE BEEN GRANTED, NO PREJUDICE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s (Jackson’s) motion to toll the accrual of interest during the four years between the filing of the first foreclosure action, which was erroneously dismissed, and the second foreclosure action should have been granted. The court further found that defendant’s motion to amend the answer to assert the lack of standing defense should have been granted:

Although the initial October 2010 RJI may have been rejected erroneously, the plaintiff fails to explain the ensuing four-year delay between the initial October 2010 filing and the subsequent filing on November 6, 2014. Under the unusual circumstances of this case, since Jackson was prejudiced by this unexplained delay, during which time interest had been accruing, the interest on the loan should have been tolled from December 22, 2010 (that is, 60 days after the alleged initial October 2010 RJI was filed, the time period during which a settlement conference would be scheduled), through the date that the plaintiff filed the subsequent RJI on November 6, 2014 … . …

“Leave to amend a pleading shall be freely given,’ provided that the amendment is not palpably insufficient as a matter of law, does not prejudice or surprise the opposing party, and is not patently devoid of merit” … . “Mere lateness is not a barrier to the amendment. It must be lateness coupled with significant prejudice to the other side, the very elements of the laches doctrine” … . Here, Jackson sought to amend his answer after he was served with the November 2014 RJI to which the plaintiff had attached a copy of the subject note, executed by him in favor of Countrywide Bank, FSB, and which had not been endorsed to the plaintiff. Since Jackson’s proposed amendment to include the defense of lack of standing did not result in any prejudice to the plaintiff and was not palpably insufficient or patently devoid of merit, the Supreme Court improvidently exercised its discretion in denying that branch of Jackson’s motion which was for leave to amend his answer to assert the defense of lack of standing … . BAC Home Loans Servicing, L.P. v Jackson, 2018 NY Slip Op 01896, Second Dept 3-21-18

FORECLOSURE (ALTHOUGH THE FIRST FORECLOSURE ACTION SHOULD NOT HAVE BEEN DISMISSED, DEFENDANT WAS NOT RESPONSIBLE FOR THE ACCRUAL OF INTEREST DURING THE FOUR YEARS UNTIL THE FORECLOSURE ACTION WAS REFILED, DEFENDANT’S MOTION TO AMEND THE ANSWER TO ADD THE DEFENSE OF LACK OF STANDING SHOULD HAVE BEEN GRANTED, NO PREJUDICE (SECOND DEPT))/INTEREST (FORECLOSURE,  ALTHOUGH THE FIRST FORECLOSURE ACTION SHOULD NOT HAVE BEEN DISMISSED, DEFENDANT WAS NOT RESPONSIBLE FOR THE ACCRUAL OF INTEREST DURING THE FOUR YEARS UNTIL THE FORECLOSURE ACTION WAS REFILED, DEFENDANT’S MOTION TO AMEND THE ANSWER TO ADD THE DEFENSE OF LACK OF STANDING SHOULD HAVE BEEN GRANTED, NO PREJUDICE (SECOND DEPT))/CIVIL PROCEDURE (AMEND ANSWER, FORECLOSURE, ALTHOUGH THE FIRST FORECLOSURE ACTION SHOULD NOT HAVE BEEN DISMISSED, DEFENDANT WAS NOT RESPONSIBLE FOR THE ACCRUAL OF INTEREST DURING THE FOUR YEARS UNTIL THE FORECLOSURE ACTION WAS REFILED, DEFENDANT’S MOTION TO AMEND THE ANSWER TO ADD THE DEFENSE OF LACK OF STANDING SHOULD HAVE BEEN GRANTED, NO PREJUDICE (SECOND DEPT))

GRANDPARENTS HAD AUTOMATIC STANDING TO SEEK VISITATION UPON DEATH OF FATHER, VISITATION WAS IN THE BEST INTERESTS OF THE CHILDREN DESPITE THE ANIMOSITY OF MOTHER (SECOND DEPT).

The Second Department determined the paternal grandparents had automatic standing to seek visitation upon father’s death. The court further determined visitation was in the best interests of the children, despite the animosity of mother (not caused by the grandparents):

When a grandparent seeks visitation pursuant to Domestic Relations Law § 72(1), the court must make a two-part inquiry … . First, it must find that the grandparent has standing, based on the death of a parent or equitable circumstances … . “Where either parent of the grandchild has died, the grandparents have an absolute right to standing” … . Once the court concludes that the grandparent has established standing to petition for visitation, the court must then determine if visitation is in the best interests of the child … . …

Animosity alone is insufficient to deny visitation … .Here, the estrangement between the paternal grandparents and the children resulted from the animosity between the mother and the paternal grandparents, and the record supported the forensic evaluator’s determination that the paternal grandparents’ conduct was not the cause of the animosity … . Matter of Mastronardi v Milano-Granito, 2018 NY Slip Op 01923, Second Dept 3-21-18

FAMILY LAW (GRANDPARENTS, VISITATION, GRANDPARENTS HAD AUTOMATIC STANDING TO SEEK VISITATION UPON DEATH OF FATHER, VISITATION WAS IN THE BEST INTERESTS OF THE CHILDREN DESPITE THE ANIMOSITY OF MOTHER (SECOND DEPT))/VISITATION (FAMILY LAW, GRANDPARENTS HAD AUTOMATIC STANDING TO SEEK VISITATION UPON DEATH OF FATHER, VISITATION WAS IN THE BEST INTERESTS OF THE CHILDREN DESPITE THE ANIMOSITY OF MOTHER (SECOND DEPT))/GRANDPARENTS (FAMILY LAW, VISITATION, GRANDPARENTS HAD AUTOMATIC STANDING TO SEEK VISITATION UPON DEATH OF FATHER, VISITATION WAS IN THE BEST INTERESTS OF THE CHILDREN DESPITE THE ANIMOSITY OF MOTHER (SECOND DEPT))/DOMESTIC RELATIONS LAW (VISITATION, GRANDPARENTS HAD AUTOMATIC STANDING TO SEEK VISITATION UPON DEATH OF FATHER, VISITATION WAS IN THE BEST INTERESTS OF THE CHILDREN DESPITE THE ANIMOSITY OF MOTHER (SECOND DEPT))/STANDING (FAMILY LAW, VISITATION, GRANDPARENTS HAD AUTOMATIC STANDING TO SEEK VISITATION UPON DEATH OF FATHER, VISITATION WAS IN THE BEST INTERESTS OF THE CHILDREN DESPITE THE ANIMOSITY OF MOTHER (SECOND DEPT))

SEPARATION AGREEMENT MET THE CRITERIA OF THE ADOPTION STATUTE, PETITION TO ADOPT SHOULD NOT HAVE BEEN DISMISSED FOR LACK OF STANDING (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the separation agreement met the statutory requirement of the adoption statute. The petitioner therefore had standing to adopt without her spouse and her petition should not have been dismissed:

Domestic Relations Law § 110 dictates who has standing to adopt, and should be strictly construed in harmony with the legislative purpose that adoption is a means of securing the best possible home for a child … . As relevant here, an “adult married person who is living separate and apart from his or her spouse . . . pursuant to a written agreement of separation subscribed by the parties thereto and acknowledged or proved in the form required to entitle a deed to be recorded . . . may adopt another person” without his or her spouse … .

A separation agreement may contain substantive provisions settling marital issues such as equitable distribution and maintenance … . However, “[t]he agreement is simply intended as evidence of the authenticity and reality of the separation'” … . Thus, for example, where the substantive provisions of a separation agreement have been invalidated as unconscionable, the agreement “generally . . . may still be accepted for the sole purpose of evidencing the parties’ agreement to live separate and apart, thus satisfying the statutory requirement in respect to a separation agreement” in providing grounds for a conversion divorce under Domestic Relations Law § 170(6) … .

Here, the separation agreement evidences the parties’ agreement to live separate and apart. The agreement is in writing, subscribed by the parties thereto, and acknowledged in the form required to entitle a deed to be recorded … . Therefore, it satisfies the statutory requirement of the adoption statute with respect to a separation agreement … . Matter of Jason (Sonia O.), 2018 NY Slip Op 01922, Second Dept 3-21-18

FAMILY LAW (ADOPTION, SEPARATION AGREEMENT MET THE CRITERIA OF THE ADOPTION STATUTE, PETITION TO ADOPT SHOULD NOT HAVE BEEN DISMISSED FOR LACK OF STANDING (SECOND DEPT))/ADOPTION (SEPARATION AGREEMENT MET THE CRITERIA OF THE ADOPTION STATUTE, PETITION TO ADOPT SHOULD NOT HAVE BEEN DISMISSED FOR LACK OF STANDING (SECOND DEPT))/SEPARATION AGREEMENT (ADOPTION, SEPARATION AGREEMENT MET THE CRITERIA OF THE ADOPTION STATUTE, PETITION TO ADOPT SHOULD NOT HAVE BEEN DISMISSED FOR LACK OF STANDING (SECOND DEPT))/DOMESTIC RELATIONS LAW (ADOPTION, SEPARATION AGREEMENT MET THE CRITERIA OF THE ADOPTION STATUTE, PETITION TO ADOPT SHOULD NOT HAVE BEEN DISMISSED FOR LACK OF STANDING (SECOND DEPT))

,

APPLICATIONS FOR A NATURAL RESOURCES SPECIAL PERMIT AND A VARIANCE FOR THE CONSTRUCTION OF RETAINING WALLS IN AN AREA OF PROTECTED BEACH VEGETATION PROPERLY DENIED, DIFFERENCE BETWEEN A NATURAL RESOURCES SPECIAL PERMIT AND A VARIANCE EXPLAINED (SECOND DEPT).

The Second Department determined the zoning board of appeals (ZBA) properly denied petitioner’s application for a natural resources special permit for the construction of retaining walls. The walls had been construction without applying for the permit. The petitioner’s application for a variance was properly denied because the criteria for a variance are more stringent than the criteria for a natural resources special permit. The retaining wall was built in an area of protected beach vegetation:

“Unlike a variance which gives permission to an owner to use property in a manner inconsistent with a local zoning ordinance, a special exception gives permission to use property in a way that is consistent with the zoning ordinance, although not necessarily allowed as of right” … . Thus, the burden of proof on the applicant seeking a special use permit “is lighter than that on an applicant seeking a variance, the former only being required to show compliance with any legislatively imposed conditions on an otherwise permitted use, while the latter must show an undue hardship in complying with the ordinance” … . “A denial of a special use permit must be supported by evidence in the record and may not be based solely upon community objection” … . “However, where evidence supporting the denial exists, deference must be given to the discretion of the zoning board, and a court may not substitute its own judgment for that of the zoning board, even if a contrary determination is supported by the record” … . Matter of 278, LLC v Zoning Bd. of Appeals of the Town of E. Hampton, 2018 NY Slip Op 01913, Second Dept 3-21-18

ENVIRONMENTAL LAW (APPLICATIONS FOR A NATURAL RESOURCES SPECIAL PERMIT AND A VARIANCE FOR THE CONSTRUCTION OF RETAINING WALLS IN AN AREA OF PROTECTED BEACH VEGETATION PROPERLY DENIED, DIFFERENCE BETWEEN A NATURAL RESOURCES SPECIAL PERMIT AND A VARIANCE EXPLAINED (SECOND DEPT))/ZONING (APPLICATIONS FOR A NATURAL RESOURCES SPECIAL PERMIT AND A VARIANCE FOR THE CONSTRUCTION OF RETAINING WALLS IN AN AREA OF PROTECTED BEACH VEGETATION PROPERLY DENIED, DIFFERENCE BETWEEN A NATURAL RESOURCES SPECIAL PERMIT AND A VARIANCE EXPLAINED (SECOND DEPT))/NATURAL RESOURCES SPECIAL PERMIT  (APPLICATIONS FOR A NATURAL RESOURCES SPECIAL PERMIT AND A VARIANCE FOR THE CONSTRUCTION OF RETAINING WALLS IN AN AREA OF PROTECTED BEACH VEGETATION PROPERLY DENIED, DIFFERENCE BETWEEN A NATURAL RESOURCES SPECIAL PERMIT AND A VARIANCE EXPLAINED (SECOND DEPT))/VARIANCES APPLICATIONS FOR A NATURAL RESOURCES SPECIAL PERMIT AND A VARIANCE FOR THE CONSTRUCTION OF RETAINING WALLS IN AN AREA OF PROTECTED BEACH VEGETATION PROPERLY DENIED, DIFFERENCE BETWEEN A NATURAL RESOURCES SPECIAL PERMIT AND A VARIANCE EXPLAINED (SECOND DEPT))/RETAINING WALLS (APPLICATIONS FOR A NATURAL RESOURCES SPECIAL PERMIT AND A VARIANCE FOR THE CONSTRUCTION OF RETAINING WALLS IN AN AREA OF PROTECTED BEACH VEGETATION PROPERLY DENIED, DIFFERENCE BETWEEN A NATURAL RESOURCES SPECIAL PERMIT AND A VARIANCE EXPLAINED (SECOND DEPT))/WATERFRONT PROPERTY (APPLICATIONS FOR A NATURAL RESOURCES SPECIAL PERMIT AND A VARIANCE FOR THE CONSTRUCTION OF RETAINING WALLS IN AN AREA OF PROTECTED BEACH VEGETATION PROPERLY DENIED, DIFFERENCE BETWEEN A NATURAL RESOURCES SPECIAL PERMIT AND A VARIANCE EXPLAINED (SECOND DEPT))

JURY SHOULD NOT HAVE BEEN INSTRUCTED ON THE AUTOMOBILE PRESUMPTION OF POSSESSION OF A WEAPON, THE WEAPON WAS SEEN IN THE POSSESSION OF A PASSENGER IN THE CAR (SECOND DEPT).

The Second Department, reversing defendant’s possession of a weapon convictions, determined the jury should not have been instructed on the automobile presumption of possession of a weapon. The weapon was seen in the possession of a passenger:

Both police officers who pursued the vehicle being driven by the defendant testified that the gun was seen solely in the physical possession of the other occupant of the vehicle who threw it out the rear passenger side window. This clear-cut evidence that the gun was observed exclusively in the possession of an identified occupant of the vehicle renders the automobile presumption inapplicable and it was error for the court to have charged that presumption … . The error in giving the charge was not harmless since it is impossible to determine whether the guilty verdict was based on this improper jury charge rather than the proper charges pertaining to the People’s alternative theories of constructive possession and acting in concert … . Accordingly, we must vacate the defendant’s convictions of criminal possession of a weapon in the second degree and the sentences imposed thereon and order a new trial on those counts of the indictment. People v Drayton-Archer, 2018 NY Slip Op 01934, Second Dept 3-21-18

CRIMINAL LAW (JURY INSTRUCTIONS, AUTOMOBILE PRESUMPTION, JURY SHOULD NOT HAVE BEEN INSTRUCTED ON THE AUTOMOBILE PRESUMPTION OF POSSESSION OF A WEAPON, THE WEAPON WAS SEEN IN THE POSSESSION OF A PASSENGER IN THE CAR (SECOND DEPT))/JURY INSTRUCTIONS (CRIMINAL LAW, AUTOMOBILE PRESUMPTION, JURY SHOULD NOT HAVE BEEN INSTRUCTED ON THE AUTOMOBILE PRESUMPTION OF POSSESSION OF A WEAPON, THE WEAPON WAS SEEN IN THE POSSESSION OF A PASSENGER IN THE CAR (SECOND DEPT))/AUTOMOBILE PRESUMPTION (CRIMINAL LAW, POSSESSION OF A WEAPON, JURY SHOULD NOT HAVE BEEN INSTRUCTED ON THE AUTOMOBILE PRESUMPTION OF POSSESSION OF A WEAPON, THE WEAPON WAS SEEN IN THE POSSESSION OF A PASSENGER IN THE CAR (SECOND DEPT))/WEAPON, POSSESSION OF (AUTOMOBILE PRESUMPTION, JURY SHOULD NOT HAVE BEEN INSTRUCTED ON THE AUTOMOBILE PRESUMPTION OF POSSESSION OF A WEAPON, THE WEAPON WAS SEEN IN THE POSSESSION OF A PASSENGER IN THE CAR (SECOND DEPT))/AUTOMOBILE PRESUMPTION (POSSESSION OF A WEAPON,  JURY SHOULD NOT HAVE BEEN INSTRUCTED ON THE AUTOMOBILE PRESUMPTION OF POSSESSION OF A WEAPON, THE WEAPON WAS SEEN IN THE POSSESSION OF A PASSENGER IN THE CAR (SECOND DEPT))

NOTICE OF CROSS MOTION DID NOT INCLUDE THE RELIEF SOUGHT OR THE GROUNDS FOR RELIEF AS REQUIRED BY CPLR 2214 (a), CROSS MOTION PROPERLY DISMISSED (SECOND DEPT).

The Second Department determined Supreme Court properly dismissed a cross-motion for failure to specify the relief sought and the grounds for relief as required by CPLR 2214 (a):

CPLR 2214(a) provides that a notice of motion shall “specify the time and place of the hearing on the motion, the supporting papers upon which the motion is based, the relief demanded and the grounds therefor” … . Here, the Supreme Court providently exercised its discretion in denying the plaintiff’s cross motion on the ground that the plaintiff’s notice of cross motion was deficient … . The plaintiff’s notice of cross motion failed to sufficiently specify the relief sought, against whom it was sought, and the grounds therefor … . Although the plaintiff’s supporting papers supplied the missing information, a court is not required to comb through a litigant’s papers to find information that is required to be set forth in the notice of motion … . Abizadeh v Abizadeh, 2018 NY Slip Op 01892, Second Dept 3-21-18

CIVIL PROCEDURE (NOTICE OF CROSS MOTION DID NOT INCLUDE THE RELIEF SOUGHT OR THE GROUNDS FOR RELIEF AS REQUIRED BY CPLR 2214 (a), CROSS MOTION PROPERLY DISMISSED (SECOND DEPT))/NOTICE OF MOTION (CIVIL PROCEDURE, NOTICE OF CROSS MOTION DID NOT INCLUDE THE RELIEF SOUGHT OR THE GROUNDS FOR RELIEF AS REQUIRED BY CPLR 2214 (a), CROSS MOTION PROPERLY DISMISSED (SECOND DEPT))/CPLR 2214(a) (NOTICE OF CROSS MOTION DID NOT INCLUDE THE RELIEF SOUGHT OR THE GROUNDS FOR RELIEF AS REQUIRED BY CPLR 2214 (a), CROSS MOTION PROPERLY DISMISSED (SECOND DEPT))

NO EVIDENTIARY SHOWING OF MERIT REQUIRED TO AMEND ANSWER, MOTION TO AMEND SHOULD HAVE BEEN GRANTED IN THE ABSENCE OF PREJUDICE (SECOND DEPT).

The Second Department, modifying Supreme Court, determined defendant’s motion to amend its answer should have been granted. No evidentiary showing of merit is required:

In the absence of “prejudice or surprise resulting directly from the delay in seeking leave” to amend a pleading, such applications “are to be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit'” … . Here, the court denied leave to amend the answer based upon its determination that the defendant had failed to lay a proper foundation, under the business records exception to the hearsay rule, for the admission of a document which allegedly demonstrated that the defendant had paid real estate taxes on the subject property. However, “[n]o evidentiary showing of merit is required under CPLR 3025(b)” … . Since the defendant’s proposed counterclaim was not palpably insufficient or patently devoid of merit, and since no prejudice or surprise would result from granting leave to amend the answer, the branch of the defendant’s cross motion seeking that relief should have been granted. 1259 Lincoln Place Corp. v Bank of N.Y., 2018 NY Slip Op 02177, Second Dept 3-28-18

CIVIL PROCEDURE (AMEND ANSWER, NO EVIDENTIARY SHOWING OF MERIT REQUIRED TO AMEND ANSWER, MOTION TO AMEND SHOULD HAVE BEEN GRANTED IN THE ABSENCE OF PREJUDICE (SECOND DEPT))/ANSWER (AMEND, NO EVIDENTIARY SHOWING OF MERIT REQUIRED TO AMEND ANSWER, MOTION TO AMEND SHOULD HAVE BEEN GRANTED IN THE ABSENCE OF PREJUDICE (SECOND DEPT))/CPLR 3025  (AMEND ANSWER, NO EVIDENTIARY SHOWING OF MERIT REQUIRED TO AMEND ANSWER, MOTION TO AMEND SHOULD HAVE BEEN GRANTED IN THE ABSENCE OF PREJUDICE (SECOND DEPT))

,

NO SPECIFIC PROOF OF WHEN AREA OF THE SLIP AND FALL WAS LAST INSPECTED, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that defendant did not demonstrate a lack of constructive notice of the condition alleged to have caused plaintiff’s parking lot slip and fall. The evidence described only general inspection practices and did not indicate when the area of the fall was last inspected:

… [T]he defendant failed to demonstrate that it lacked constructive notice of the hazardous condition which allegedly caused the injured plaintiff’s fall. The defendant relied upon, inter alia, the deposition testimony and affidavit of the property manager, which merely referred to her general inspection practices for the parking lot and provided no evidence regarding any specific inspection of the area in question prior to the injured plaintiff’s fall … . Maria De Los Angeles Baez v Willow Wood Assoc., LP, 2018 NY Slip Op 01589, Second Dept 3-14-18

NEGLIGENCE (NO SPECIFIC PROOF OF WHEN AREA OF THE SLIP AND FALL WAS LAST INSPECTED, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/SLIP AND FALL (CONSTRUCTIVE NOTICE, NO SPECIFIC PROOF OF WHEN AREA OF THE SLIP AND FALL WAS LAST INSPECTED, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/EVIDENCE (SLIP AND FALL, NO SPECIFIC PROOF OF WHEN AREA OF THE SLIP AND FALL WAS LAST INSPECTED, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (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