ISSUE OUTLINE OF SELECTED NEW YORK STATE APPELLATE DECISIONS RELEASED BY THE SECOND DEPARTMENT 11-17
CIVIL PROCEDURE.
SUPREME COURT SHOULD NOT HAVE STAYED THE ENFORCEMENT OF PLAINTIFFS' JUDGMENT PURSUANT TO CPLR 5240 BASED ON COUNTERCLAIMS ASSERTED BY DEFENDANTS, ACTION ON THE COUNTERCLAIMS COULD PROCEED DESPITE ENFORCEMENT OF THE JUDGMENT. Castle Restoration & Constr., Inc. v Castle Restoration, LLC, 2017 NY Slip Op 07703, Second Dept 11-8-17
CIVIL PROCEDURE.
AFFIRMATIVE DEFENSE WHICH ARISES FROM THE ACTION BROUGHT IS NOT TIME-BARRED. Matter of Jenkins v Astorino, 2017 NY Slip Op 07730, Second Dept 11-8-17
CIVIL PROCEDURE.
DUE DILIGENCE STANDARD FOR SERVICE OF PROCESS PURSUANT TO CPLR 308 (4) WAS MET. U.S. Bank, N.A. v Cepeda, 2017 NY Slip Op 07767, Second Dept 11-8-17
CIVIL PROCEDURE.
WHERE ISSUE WAS NEVER JOINED, ACTION CANNOT BE DISMISSED FOR NEGLECT TO PROSECUTE PURSUANT TO CPLR 3216.Deutsche Bank Natl. Trust Co. v Augustin, 2017 NY Slip Op 07973, Second Dept 11-15-17
CIVIL PROCEDURE, DEBTOR-CREDITOR.
SUMMARY JUDGMENT ENTERING A RENEWAL JUDGMENT PROPERLY GRANTED, CRITERIA EXPLAINED. Jones Morrison, LLP v Schloss, 2017 NY Slip Op 07712, Second Dept 11-8-17
CIVIL PROCEDURE, FORECLOSURE.
BANK MOVED FOR AN ORDER OF REFERENCE WITHIN ONE YEAR OF DEFAULT IN THIS FORECLOSURE ACTION, THE ACTION SHOULD NOT HAVE BEEN DISMISSED AS ABANDONED. Wells Fargo Bank, N.A. v Mayen, 2017 NY Slip Op 07768, Second Dept 11-817
CIVIL PROCEDURE, FORECLOSURE, REAL PROPERTY ACTIONS AND PROCEEDINGS LAW.
PLAINTIFF BANK SHOULD HAVE BEEN ALLOWED TO AMEND THE COMPLAINT BY ADDING PARTIES AND TO EXTEND THE REACH OF THE ACTION TO THE ENTIRE PREMISES WHICH HAD BEEN ACQUIRED BY ADVERSE POSSESSION. Emigrant Sav. Bank v Walters, 2017 NY Slip Op 07976, Second Dept 11-15-17
CIVIL PROCEDURE, FRAUD, ATTORNEYS, EVIDENCE .
ALLEGATION THAT LAW FIRM ADDUCED FALSE EVIDENCE IN A PROCEEDING MUST BE ASSERTED IN A MOTION TO VACATE THE JUDGMENT IN THAT PROCEEDING, NOT AS A NEW ACTION. DeMartino v Lomonaco, 2017 NY Slip Op 07706, Second Dept 11-8-17
CIVIL PROCEDURE, TRUSTS AND ESTATES.
SUPREME COURT SHOULD NOT HAVE AWARDED A MONEY JUDGMENT AGAINST DEFENDANT PERSONALLY, DEFENDANT WAS ONLY A PARTY TO THE ACTION AS A TRUSTEE. Magid v Sunrise Holdings Group, LLC, 2017 NY Slip Op 07718, Second Dept 11-8-17
CIVIL PROCEDURE, MEDICAL MALPRACTICE, NEGLIGENCE.
MOTION TO AMEND THE BILL OF PARTICULARS TO ADD A NEW THEORY OF LIABILITY WHICH WAS FIRST RAISED BY PLAINTIFFS' EXPERT SHOULD HAVE BEEN GRANTED. Moore v Franklin Hosp. Med. Center-North Shore-Long Is. Jewish Health Sys., 2017 NY Slip Op 08263, Second Dept 11-22-17
CRIMINAL LAW.
HOT PURSUIT JUSTIFIED WARRANTLESS ARREST IN DEFENDANT'S HOME. People v Caputo, 2017 NY Slip Op 07614, Second Dept 11-1-17
CRIMINAL LAW.
ASKING DEFENDANT DURING A TRAFFIC STOP WHETHER HE HAD ANYTHING ILLEGAL IN THE CAR WAS NOT JUSTIFIED BY A FOUNDED SUSPICION, ALL PHYSICAL EVIDENCE TAKEN FROM THE CAR AND SUBSEQUENT STATEMENTS AT THE POLICE STATION SHOULD HAVE BEEN SUPPRESSED. People v Newson, 2017 NY Slip Op 07752, Second Dept, 11-8-17
CRIMINAL LAW.
THE KILLING OF ONE PERSON AND WOUNDING OF TWO BY FIRING 13 SHOTS INTO A GROUP OF PEOPLE FROM A ROOFTOP WERE NOT SEPARATE AND DISTINCT OFFENSES, SENTENCES MUST BE CONCURRENT. People v Lopez, 2017 NY Slip Op 08016, Second Dept 11-15-17
CRIMINAL LAW.
DEFENDANT PRESENTED EVIDENCE HE WOULD NOT HAVE PLED GUILTY HAD HE KNOWN HIS FEDERAL AND STATE SENTENCES WOULD NOT RUN CONCURRENTLY, MOTION TO VACATE CONVICTION SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING.. People v Oquendo, 2017 NY Slip Op 08018, Second Dept 11-15-17
CRIMINAL LAW.
DENIAL OF PAROLEE'S REQUEST TO LIVE IN HIS FAMILY HOME WAS APPARENTLY BASED UPON COMMUNITY PRESSURE AND WAS REVERSED AS ARBITRARY AND CAPRICIOUS. Matter of Telford v McCartney, 2017 NY Slip Op 08384, Second Dept 11-29-17
CRIMINAL LAW, APPEALS.
ARREST WAS NOT AUTHORIZED, CONVICTION FOR RESISTING ARREST REVERSED IN THE INTEREST OF JUSTICE (ERROR NOT PRESERVED). People v Andrews, 2017 NY Slip Op 07747, Second Dept 11-8-17
CRIMINAL LAW, APPEALS.
DEFENDANT WAS TOLD HE COULD APPEAL THE DENIAL OF HIS SPEEDY TRIAL MOTION AFTER ENTERING A GUILTY PLEA, WRONG ADVICE WARRANTED VACATING THE PLEA. People v Smith, 2017 NY Slip Op 08288, Second Dept 11-22-17
CRIMINAL LAW, ATTORNEYS.
FAILURE TO REQUEST A JURY CHARGE ON THE INTOXICATION DEFENSE MAY HAVE BEEN A STRATEGIC DECISION WHICH THE APPELLATE COURT WILL NOT SECOND GUESS IN HINDSIGHT. People v Pagan, 2017 NY Slip Op 07753, Second Dept 11-8-17
CRIMINAL LAW, EVIDENCE.
DUCT TAPE USED TO SILENCE AND RESTRAIN THE VICTIM WAS A DANGEROUS INSTRUMENT WITHIN THE MEANING OF THE ROBBERY FIRST STATUTE, KIDNAPPING BASED UPON THE RESTRAINT OF THE VICTIM DID NOT MERGE WITH ROBBERY, DISSENT DISAGREED. People v Williams, 2017 NY Slip Op 07758, Second Dept 11-8-17
CRIMINAL LAW, EVIDENCE, CONSTITUTIONAL LAW, APPEALS.
UNEXPECTED ABSENCE OF A PROSECUTION WITNESS AFTER ARRESTING OFFICERS TESTIFIED ABOUT THE WITNESS'S INVOLVEMENT IN DEFENDANT'S ARREST DEPRIVED DEFENDANT OF HIS RIGHT TO CONFRONT THE WITNESSES AGAINST HIM, CONVICTION REVERSED IN THE INTEREST OF JUSTICE (ERROR NOT PRESERVED). People v Tavarez, 2017 NY Slip Op 07756, Second Dept 11-8-17
CRIMINAL LAW, JUDGES, EVIDENCE.
EXCESSIVE INTERVENTION IN THE QUESTIONING OF DEFENDANT AND WITNESSES BY THE TRIAL JUDGE REQUIRED A NEW TRIAL, DEFENDANT SHOULD NOT HAVE BEEN QUESTIONED ABOUT HIS BEING INCARCERATED DURING THE TRIAL. People v Estevez, 2017 NY Slip Op 07615, Second Dept 11-1-17
DEBTOR-CREDITOR.
GUARANTOR OF A CRIMINALLY USURIOUS LOAN WAS ENTITLED TO SUMMARY JUDGMENT IN AN ACTION SEEKING PAYMENT, THE DOCTRINE OF ESTOPPEL IN PAIS DID NOT APPLY. Kingsize Entertainment, LLC v Martino, 2017 NY Slip Op 07986, Second Dept 11-15-17
EMPLOYMENT LAW.
AGE DISCRIMINATION LAWSUIT PROPERLY DISMISSED FOR FAILURE TO STATE A CAUSE OF ACTION. Murphy v Department of Educ. of the City of New York, 2017 NY Slip Op 07609, Second Dept 11-1-17
EMPLOYMENT LAW, MUNICIPAL LAW, HUMAN RIGHTS LAW, CONSTITUTIONAL LAW.
PLAINTIFF'S SEX AND AGE DISCRIMINATION CAUSES OF ACTIONS, AS WELL AS A RETALIATION CAUSE OF ACTION, SHOULD NOT HAVE BEEN DISMISSED, FIRST AMENDMENT VIOLATION CAUSE OF ACTION AGAINST CITY REQUIRES A NOTICE OF CLAIM, MOTION TO AMEND COMPLAINT TO ADD A FIRST AMENDMENT VIOLATION UNDER FEDERAL LAW, WHICH DOES NOT REQUIRE A NOTICE OF CLAIM, SHOULD HAVE BEEN GRANTED. Kassapian v City of New York, 2017 NY Slip Op 07985, Second Dept 11-15-17
ENVIRONMENTAL LAW, ZONING, MUNICIPAL LAW.
PLANNING BOARD'S APPROVAL OF DEVELOPMENT INCLUDING WETLANDS NEEDED APPROVAL BY THE ARMY CORPS OF ENGINEERS, REQUEST FOR A SUPPLEMENTAL ENVIRONMENTAL IMPACT STATEMENT SHOULD HAVE BEEN GRANTED. Matter of Shapiro v Planning Bd. of the Town of Ramapo, 2017 NY Slip Op 07734, Second Dept 11-8-17
ENVIRONMENTAL LAW, ZONING, MUNICIPAL LAW.
PLANNING BOARD DID NOT TAKE THE REQUISITE HARD LOOK AT THE IMPACT OF THE PROPOSED DEVELOPMENT, SUPPLEMENTAL ENVIRONMENTAL IMPACT STATEMENT REQUIRED. Matter of Youngewirth v Town of Ramapo Town Bd., 2017 NY Slip Op 07744, Second Dept 11-8-17
FAMILY LAW.
DERIVATIVE NEGLECT FINDING CANNOT BE BASED UPON A PRIOR ADJOURNMENT IN CONTEMPLATION OF DISMISSAL (ACD) WHICH IS NOT A DETERMINATION ON THE MERITS. Matter of Delilah D. (Richard D.), 2017 NY Slip Op 07724, Second Dept 11-8-17
FAMILY LAW.
THIRD CHILD SHOULD HAVE BEEN FOUND TO HAVE BEEN DERIVATIVELY NEGLECTED BASED UPON PROOF FATHER INJURED THE TWO OTHER CHILDREN. Matter of Nyair J. (Vernon J.), 2017 NY Slip Op 07729, Second Dept 11-8-17
FAMILY LAW.
ALTHOUGH CHILD RESIDED WITH NON-PARENT FOR A NUMBER OF YEARS, THE ARRANGEMENT WAS TEMPORARY TO ALLOW FATHER TO ATTEND LAW SCHOOL, NON-PARENT'S PETITION FOR CUSTODY PROPERLY DISMISSED WITHOUT A HEARING. Matter of Schmitt v Troche, 2017 NY Slip Op 07732, Second Dept 11-8-17
FAMILY LAW.
FAMILY COURT SHOULD HAVE MADE FINDINGS TO ALLOW JUVENILE TO APPLY FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS), REUNIFICATION WITH A PARENT AND RETURN TO INDIA WERE NOT IN THE CHILD'S BEST INTERESTS. Matter of Gurwinder S., 2017 NY Slip Op 08272, Second Dept 11-22-17
FAMILY LAW.
COURT IMPROPERLY DELEGATED ITS AUTHORITY BY ALLOWING MOTHER TO CANCEL VISITATION IF FATHER WAS MORE THAN 15 MINUTES LATE. Matter of Michael R. v Aliesha H., 2017 NY Slip Op 08377, Second Dept 11-29-17
FAMILY LAW, APPEALS.
FATHER WHO WAS EXCLUDED FROM THE HOME AFTER CHILD ABUSE ALLEGATIONS HAD A RIGHT TO AN EXPEDITED HEARING PURSUANT TO FAMILY COURT ACT 1028, BECAUSE THE ISSUE IS IMPORTANT AND LIKELY TO RECUR THE MOOTNESS DOCTRINE WAS NOT APPLIED TO PRECLUDE APPEAL. Matter of Elizabeth C. (Omar C.), 2017 NY Slip Op 08370, Second Dept 11-29-17
FAMILY LAW, CRIMINAL LAW.
FAMILY OFFENSES OF AGGRAVATED HARASSMENT AND ASSAULT THIRD NOT SUPPORTED BY PROOF OF PHYSICAL INJURY. Matter of Stanislaus v Stanislaus, 2017 NY Slip Op 08274, Second Dept 11-22-17
FORECLOSURE, ATTORNEYS.
INTEREST MUST BE RECALCULATED AND ATTORNEY'S FEES MUST BE SHOWN TO BE REASONABLE, PERHAPS IN A HEARING, IN THIS FORECLOSURE ACTION. Greenpoint Mtge. Corp. v Lamberti, 2017 NY Slip Op 08353, Second Dept 11-29-17
FORECLOSURE, MORTGAGES, CONTRACT LAW.
PARTY IS DEEMED TO HAVE READ A SIGNED DOCUMENT, JUDGMENT OF FORECLOSURE ON THIS CONSTRUCTION MORTGAGE PROPERLY GRANTED, BANKING LAW REQUIREMENTS DO NOT APPLY TO CONSTRUCTION MORTGAGE. Prompt Mtge. Providers of N. Am., LLC v Zarour, 2017 NY Slip Op 08028, Second Dept 11-15-17
FRAUD, CONTRACT LAW.
FRAUDULENT INDUCEMENT AND DEMAND FOR PUNITIVE DAMAGES SHOULD NOT HAVE BEEN DISMISSED IN THIS BREACH OF CONTRACT ACTION, PLAINTIFF ALLEGED AIR AMBULANCE WAS NOT EQUIPPED WITH PROPER EQUIPMENT AND PERSONNEL Greenberg v Meyreles, 2017 NY Slip Op 08351, Second Dept 11-20-17
INSURANCE LAW.
INSURED SETTLED THE MATTER WITHOUT INSURER'S CONSENT, INSURER NOT OBLIGATED TO DEFEND OR INDEMNIFY INSURED. Ralex Servs., Inc. v Southwest Mar. & Gen. Ins. Co., 2017 NY Slip Op 07763, Second Dept 11-8-17
LABOR LAW-CONSTRUCTION LAW, CIVIL PROCEDURE, EVIDENCE.
BECAUSE THERE WAS EVIDENCE PLAINTIFF FELL OFF A BEAM IN THIS LABOR LAW 240(1) ACTION, IN ADDITION TO EVIDENCE HE TRIPPED OVER DEBRIS, THE TRIAL JUDGE ERRED IN REFUSING TO INSTRUCT THE JURY TO DECIDE WHETHER PLAINTIFF FELL OFF THE BEAM, MOTION TO SET ASIDE THE VERDICT IN THE INTEREST OF JUSTICE SHOULD HAVE BEEN GRANTED. Duran v Temple Beth Sholom, Inc., 2017 NY Slip Op 07708, Second Dept 11-8-17
LABOR LAW-CONSTRUCTION LAW, INSURANCE LAW, CONTRACT LAW.
COMPLEX DECISION EXPLAINING BLACK LETTER LAW ON LABOR LAW 240(1), 241(6) AND 200 CAUSES OF ACTION, CONTRACTUAL AND IMPLIED INDEMNIFICATION, AND INSURANCE COVERAGE ISSUES. Poalacin v Mall Props., Inc., 2017 NY Slip Op 08027, Second Dept 11-15-17
LABOR LAW-CONSTRUCTION LAW.
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT ON PLAINTIFFS' LABOR LAW 240(1), 241(6) AND 200 CAUSES OF ACTION SHOULD NOT HAVE BEEN GRANTED. King v Villette, 2017 NY Slip Op 07596, Second Dept 11-1-17
LABOR LAW-CONSTRUCTION LAW.
NO SUPERVISORY CONTROL OVER THE MANNER OF PLAINTIFF'S WORK, INJURY WAS NOT THE RESULT OF THE ABSENCE OR FAILURE OF A SAFETY DEVICE, LABOR LAW 200 AND 240 (1) CAUSES OF ACTION PROPERLY DISMISSED. Portalatin v Tully Constr. Co.- E.E. Cruz & Co., 2017 NY Slip Op 07762, Second Dept 11-8-17
LABOR LAW-CONSTRUCTION LAW.
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF'S LABOR LAW 240 (1) CAUSE OF ACTION SHOULD NOT HAVE BEEN GRANTED, PLAINTIFF WAS ATTEMPTING TO PUSH A HEAVY DOLLY UP A RAMP WHEN IT ROLLED BACK AND INJURED HIM. Kandatyan v 400 Fifth Realty, LLC, 2017 NY Slip Op 07984, Second Dept 11-15-17
LANDLORD-TENANT.
LESSEE DID NOT MOVE FOR A YELLOWSTONE INJUNCTION WITHIN THE CURE PERIOD ALLOWED BY THE LEASE, SUPREME COURT NO LONGER HAD JURISDICTION TO GRANT THE INJUNCTION. Riesenburger Props., LLLP v Pi Assoc., LLC, 2017 NY Slip Op 08294, Second Dept 11-22-17
MEDICAL (DENTAL) MALPRACTICE, NEGLIGENCE.
DESPITE PLAINTIFF'S SIGNING A CONSENT FORM, DEFENDANTS' MOTION FOR SUMMARY JUDGMENT ON THE LACK OF INFORMED CONSENT CAUSE OF ACTION PROPERLY DENIED, PLAINTIFF ALLEGED THE WRONG TOOTH WAS EXTRACTED. Godel v Goldstein, 2017 NY Slip Op 08260, Second Dept 11-22-17
MENTAL HYGIENE LAW, CRIMINAL LAW.
ORDER THAT THE PATIENT INMATE SHOULD BE TREATED WITH A PARTICULAR DRUG FOR SCHIZOPHRENIA OVER HIS OBJECTION SUPPORTED BY CLEAR AND CONVINCING EVIDENCE, ORDER ALLOWING ALTERNATIVE DRUGS, AND A NONDURATIONAL ORDER NOT SUPPORTED. Matter of Radcliffe M., 2017 NY Slip Op 08270, Second Dept 11-22-17
MUNICIPAL LAW, REAL PROPERTY LAW, CONSTITUTIONAL LAW.
OWNER OF REGULATED WETLANDS ENTITLED TO AN INCREASED VALUATION IN CONDEMNATION PROCEEDINGS REPRESENTING THE PREMIUM A KNOWLEDGEABLE BUYER MIGHT PAY FOR A POTENTIAL CHANGE TO A MORE VALUABLE USE. Matter of New Cr. Bluebelt, Phase 3., 2017 NY Slip Op 07994, Second Dept 11-15-17
NEGLIGENCE.
DEFENDANT PROPERTY OWNER AND DEFENDANT ELEVATOR COMPANY DEMONSTRATED THEY DID NOT HAVE NOTICE OF THE ELEVATOR DEFECT WHICH CAUSED PLAINTIFF'S INJURY, DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED. Nunez v Chase Manhattan Bank, 2017 NY Slip Op 07610, Second Dept 11-1-17
NEGLIGENCE.
PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED IN THIS TRAFFIC ACCIDENT CASE, DEFENDANT PULLED IN FRONT OF PLAINTIFF AFTER TURNING ON HIS TURN SIGNAL BUT PLAINTIFF ONLY HAD ONE OR TWO SECONDS TO REACT. Criollo v Maggies Paratransit Corp., 2017 NY Slip Op 07704, Second Dept 11-8-17
NEGLIGENCE.
DEFENDANT DRIVER DID NOT DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT AS A MATTER OF LAW IN THIS BICYCLE-CAR COLLISION CASE, DESPITE VIDEO SHOWING PLAINTIFF DARTING INTO TRAFFIC.. Ellis v Vazquez, 2017 NY Slip Op 07709, Second Dept 11-8-17
NEGLIGENCE.
BUILDING OWNERS' MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED IN THIS WET-FLOOR SLIP AND FALL CASE. Dow v Hermes Realty, LLC, 2017 NY Slip Op 07974, Second Dept 11-15-17
NEGLIGENCE.
DESPITE PLAINTIFF'S APPARENT VIOLATION OF THE VEHICLE AND TRAFFIC LAW, DEFENDANT'S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED IN THIS TRAFFIC ACCIDENT CASE. Aponte v Vani, 2017 NY Slip Op 08252, Second Dept 11-22-17
NEGLIGENCE.
DEFENDANTS FAILED TO DEMONSTRATE THEY DID NOT CREATE OR HAVE NOTICE OF THE ICE-SNOW CONDITION ON THE SIDEWALK IN THIS SLIP AND FALL CASE, DEFENDANTS’ SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED. Michalska v Coney Is. Site 1824 Houses, Inc., 2017 NY Slip Op 08365, Second Dept 11-29-17
NEGLIGENCE.
DEFENDANTS SUBMITTED CONFLICTING EVIDENCE ABOUT THE WEATHER IN THIS SLIP AND FALL CASE, SUMMARY JUDGMENT PURSUANT TO THE STORM IN PROGRESS RULE SHOULD NOT HAVE BEEN GRANTED. Pecoraro v Tribuzio, 2017 NY Slip Op 08386, Second Dept 11-29-17
NEGLIGENCE.
DEFENDANT ATTEMPTED A TURN IN VIOLATION OF THE VEHICLE AND TRAFFIC LAW WHICH CONSTITUTED NEGLIGENCE PER SE, CO-DEFENDANTS, WHOSE TRUCK COLLIDED WITH THE CAR DRIVEN BY THE DEFENDANT WHO VIOLATED THE VEHICLE AND TRAFFIC LAW, ENTITLED TO SUMMARY JUDGMENT. Pipinias v Ferreira, 2017 NY Slip Op 08400, Second Dept 11-29-17
NEGLIGENCE, CIVIL PROCEDURE.
PLAINTIFF'S MOTION FOR JUDGMENT AS A MATTER OF LAW SHOULD HAVE BEEN GRANTED, DESK LEFT UNATTENDED ON A DOLLY BY DEFENDANT MOVER FELL OVER ONTO PLAINTIFF. Canale v L & M Assoc. of N.Y., Inc., 2017 NY Slip Op 07701, Second Dept 11-8-17
NEGLIGENCE, CONTRACT LAW, EMPLOYMENT LAW.
TRANSMISSION REPAIR COMPANY OWED A DUTY TO PLAINTIFF'S DECEDENT AS A THIRD PARTY BENEFICIARY OF A TRUCK REPAIR CONTRACT WITH PLAINTIFF'S DECEDENT'S EMPLOYER, IF THE TRUCK HAD BEEN EQUIPPED WITH A FUNCTIONING NEUTRAL INTERLOCK SYSTEM IT WOULD NOT HAVE LURCHED BACK, KILLING PLAINTIFF'S DECEDENT. Vargas v Crown Container Co., Inc., 2017 NY Slip Op 08297, Second Dept 11-22-17
NEGLIGENCE, EDUCATION-SCHOOL LAW.
STUDENT WITH CEREBRAL PALSY COLLIDED WITH ANOTHER STUDENT DURING A SUPERVISED GAME, SUPERVISION WAS ADEQUATE AND INJURY WAS DUE TO A SPONTANEOUS ACT WHICH SUPERVISION COULD NOT PREVENT, SCHOOL'S SUMMARY JUDGMENT MOTION PROPERLY GRANTED. Tzimopoulos v Plainview-Old Bethpage Cent. Sch. Dist., 2017 NY Slip Op 08296, Second Dept 11-22-17
NEGLIGENCE, EDUCATION-SCHOOL LAW.
PRIMARY ASSUMPTION OF RISK PRECLUDED RECOVERY FOR INJURY DURING GYM CLASS, INHERENT COMPULSION DOCTRINE INAPPLICABLE. Hanson v Sewanhaka Cent. High Sch. Dist., 2017 NY Slip Op 07711, Second Dept 11-8-17
NEGLIGENCE, EVIDENCE.
PROOF OF GENERAL CLEANING PRACTICES DID NOT DEMONSTRATE LACK OF NOTICE IN THIS SLIP AND FALL CASE, NEGLIGENT LOSS OF VIDEO WARRANTED AN ADVERSE INFERENCE CHARGE. Eksarko v Associated Supermarket, 2017 NY Slip Op 07975, Second Dept 11-15-17
NEGLIGENCE, EVIDENCE.
PLAINTIFF'S CROSSING IN FRONT OF DEFENDANT DRIVER IN AN ATTEMPT TO MAKE A RIGHT TURN FROM THE CENTER LANE VIOLATED THE VEHICLE AND TRAFFIC LAW AND CONSTITUTED THE SOLE PROXIMATE CAUSE OF THE TRAFFIC ACCIDENT, PLAINTIFF'S OPPOSING PAPERS RAISED ONLY FEIGNED ISSUES OF FACT. Park v Sanchez, 2017 NY Slip Op 08279, Second Dept 11-22-16
NEGLIGENCE, LANDLORD-TENANT, MUNICIPAL LAW.
OUT OF POSSESSION LANDLORD (NYC HOUSING AUTHORITY) DEMONSTRATED IT DID NOT HAVE NOTICE OF A DEFECTIVE WINDOW WHICH ALLEGEDLY SLAMMED SHUT SEVERING A PORTION OF PLAINTIFF'S FINGER, LANDLORD'S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED. Cotto v New York City Hous. Auth., 2017 NY Slip Op 08258, Second Dept 11-22-17
REAL PROPERTY LAW.
EASEMENT EXTINGUISHED BY MERGER WHEN BOTH AFFECTED PARCELS OWNED BY THE SAME PARTY, COMPLAINT DID NOT STATE A CAUSE OF ACTION FOR EASEMENT BY NECESSITY. GDG Realty, LLC v 149 Glen St. Corp., 2017 NY Slip Op 07978, Second Dept 11-15-17
TRUSTS AND ESTATES.
EXECUTOR'S DISCLOSURE OF THE INFORMAL ACCOUNTING OF THE ESTATE TO BENEFICIARIES WAS SUFFICIENT, BENEFICIARY'S MOTION TO SET ASIDE A RELEASE PROPERLY DENIED. Matter of Spacek, 2017 NY Slip Op 07737, Second Dept 11-8-17
ZONING, CIVIL PROCEDURE, ENVIRONMENTAL LAW.
ALTHOUGH THE PLANNING BOARD HELD THAT IT HAD JURISDICTION OVER THE PROPOSED DEVELOPMENT, A FINDING WITH WHICH PETITIONERS DISAGREED, THE BOARD ALSO HELD THE PETITIONERS COULD APPLY FOR A HARDSHIP EXEMPTION WHICH WAS NOT DONE, THE ACTION IS THEREFORE PREMATURE. Matter of Equine Facility, LLC v Pavacic, 2017 NY Slip Op 08371, Second Dept 11-29-17