You are here: / Second Department

Tag Archive for: Second Department

, , ,

Procedure for Extending Real Property Lien Based on Money Judgment

The procedure for extending a real property lien which is based on a New York money judgment was explained by the Second Department:

Although a New York money judgment is enforceable for 20 years (see CPLR 211[b]), a real property lien resulting from the judgment is viable for only 10 years (see CPLR 5203[a]). For this reason, the Legislature enacted CPLR 5014 to give a judgment creditor an opportunity to extend the life of the lien by commencing an action for a renewal judgment … . “Pursuant to CPLR 5014(1), an action upon a money judgment may be maintained between the original parties where ten years have elapsed since the judgment was originally docketed” … . “An action may be commenced under subdivision one of this section during the year prior to the expiration of ten years since the first docketing of the judgment” (CPLR 5014). The plaintiff here established her prima facie entitlement to judgment as a matter of law awarding her a renewal judgment pursuant to CPLR 5014(1) by demonstrating the existence of the prior judgment, that the defendant was the judgment debtor, that the judgment was docketed at least nine years prior to the commencement of this action, and that the judgment remains partially or completely unsatisfied …. . Rose v Gulizia, 2013 NY Slip Op 01542, 2011-08302, Index No 40635/15, 2nd Dept. 3-13-13

 

,

Supreme Court Has the Power to Appoint a Temporary Representative to Substitute for a Defendant in a Personal Injury Action

One of the defendants in a personal injury action died.  The plaintiff moved pursuant to CPLR 1015 to have Supreme Court appoint a temporary representative of the estate, and to have the temporary representative substituted for the deceased defendant. The defendants opposed the motion arguing that Surrogate’s Court was the appropriate forum for the appointment of a temporary administrator. In finding that Supreme Court could make the appointment, the Second Department wrote:

“In most instances the personal representative of the decedent’s estate should be substituted in the action” …. However, in the event no such representative exists, an appropriate appointment should be made and that individual should be substituted in place of the decedent … . “In determining who shall be substituted for the decedent, conflict of interest questions may be raised” … .

The Second Department, however, determined that the person Supreme Court appointed, the attorney for the insurance company defending the action, had a conflict of interest because the insurance company had disclaimed coverage for the subject accident.  The matter was remitted for the appointment of a different temporary administrator.  Dieye v Royal Blue Services, Inc., 2012 NY Slip Op 01527, 2012-03428, Index No 3392/09, 2nd Dept. 3-13-13

 

, ,

“Aid of the Court No Longer Required” in Neglect Proceeding

The grandmother and mother of a seven-month-old were found to have neglected the child by briefly leaving the child unattended in the kitchen sink with the water running when the hot water “spiked” causing burns.  The mother and grandmother moved to dismiss the petition pursuant to Family Court Act 1051 (c) on the ground aid of the court was not required.  The Second Department noted that the facts were sufficient to sustain the petition, but determined the petition should be dismissed because the aid of the court was not required.  Following the incident the mother completed all the programs required by children’s services, the grandmother attended parenting classes with the mother voluntarily, the child was returned to the mother 18 months before the hearing, home visits confirmed the child was not left unattended and was bathed properly, and the hot water “spikes” had been eliminated. The Second Department wrote:  “The foregoing demonstrates that the incident on which the petition was based was an isolated one, that the mother and grandmother have been rehabilitated, and that the child is no longer at risk of being neglected …”.  Matter of Kayden H., 2013 NY Slip Op 01549, 2011-09702, 2011-09704, Docket No N-22472-09, 2nd Dept. 3-13-13

 

,

Defective Handrail Could Have Been Factor in Plaintiff’s Injuries.

In reversing the trial court’s grant of a motion to set aside the verdict, the Second Department determined that the violation of an Administrative Code concerning stairway handrails could have been a factor in the injuries to the plaintiff. The plaintiff tried to stop his fall down a stairway but could not grab the handrail which was flush with the wall.  Expert testimony established that a handrail flush to the wall was dangerous and defective.  Cusumano v City of New York, 2012-00015, Index No 4207/01, Second Dept. 3-6-13

 

,

Prior Written Notice Law Protects City from Liability for Dangerous Road Condition.

“Where a municipality has enacted a prior written notice law, it may not be subjected to liability for injuries arising from a dangerous roadway condition unless it has received prior written notice of the dangerous condition, or an exception to the prior written notice requirement applies…  .  The only recognized exceptions to the statutory prior written notice requirement involve situations in which the municipality created the defect or hazard through an affirmative act of negligence, or where a special use confers a benefit upon the municipality…” .  Because the City established it had not received prior written notification of the condition which caused plaintiff’s injuries it was entitled to judgment as a matter of law.  Connor v City of New York, 2012-02970, Index No 30407/05, Second Dept. 3-6-13

 

, ,

Hospital Generally Not Liable for Negligence of Private Attending Physician.

“ ‘[I]n general, a hospital cannot be held vicariously liable for the negligence of a private attending physician’ … . Further, a hospital cannot be held concurrently liable with such a physician unless its employees commit independent acts of negligence or the attending physician’s orders are contraindicated by normal practice…’ “.  Aronov v Soukkary, 2012-00155, Index No 2061/09, Second Dept. 3-6-13

 

, ,

Herniated Disc not “Serious Injury”—Insufficient Proof of Physical Limitations.

The Second Department reversed the trial court’s denial of a motion pursuant to CPLR 4404 to set aside the jury verdict.  The issue was whether the plaintiff had proven he sustained “serious injury” within the meaning of Insurance Law 5102(d).  The plaintiff had a bulging or herniated disk but did not provide objective proof of the extent or degree of the alleged physical limitations caused by the disc injury. In describing the criteria for analysis, the Court wrote:  “ ‘A motion pursuant to CPLR 4404(a) to set aside a jury verdict and for judgment as a matter of law will be granted where there is no valid line of reasoning and permissible inferences which could possibly lead rational persons to the conclusions reached by the jury on the basis of the evidence presented at trial…’ “.  Bacon v Bostany, 2011-08654, 2012-07634, Index No 997/08, Second Dept. 3-6-13

 

,

Erroneous Discharge of Mortgage Can Be Set Aside Where No Detrimental Reliance

The Second Department explained: “ ‘ A mortgagee may have an erroneous discharge of mortgage, without concomitant satisfaction of the underlying mortgage debt, set aside, and have the mortgage reinstated where there has not been detrimental reliance on the erroneous recording’ … .Only bona fide purchasers and lenders for value are entitled to protection from an erroneous discharge of a mortgage based upon their detrimental reliance thereon.”  Beltway Capital, LLC v Soleil,et al, 2011-02773, Index no 22244/07, Second Dept. 3-6-13

 

,

Failure to Hold a Hearing on Mother’s Petition for Custody and Failure to Inform Father of Right to Counsel Required Reversal of Custody Determination

The Second Department determined Family Court’s failure to hold a hearing to determine the mother’s petition for custody, and the Court’s failure to advise the father that he had the right to counsel, required reversal of the grant of custody to the mother.  In the Matter of Savoca v Bellofatto, 2012-02935, Docket No V-22033-11, Second Dept 3-6-13

 

,

Record-Keeping Was a Condition Precedent to Insurance Coverage

The record-keeping requirement in an insurance policy was a condition precedent. “Here, the defendant established its prima facie entitlement to judgment as a matter of law by submitting evidence that the plaintiff failed to comply with the record-keeping requirement set forth in the subject insurance policy, which was a clear condition precedent to coverage … “ Stars Jewelry…v Hanover Insurance Group, Inc., 2011-09098, Index No 5221/10, 2nd Dept. 3-6-13

 

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