In Perez v. City of New York, the Appellate Division, First Department affirmed the lower court’s dismissal of plaintiff’s car accident case on the ground of laches. Black’s Law Dictionary defines “laches” as the “unreasonable delay pursuing a right or claim…in a way that prejudices the [opposing] party”. The court, in a very short opinion,…
Read More Laches Results in Dismissal of 28-Year Old Car Accident CaseThe Appellate Division, First Department in Gural v. Fred Drasner recently addressed the following question: whether a part performance exception should be applied to contracts that are not capable of performance within one year of their making, which must be in writing pursuant to General Obligations Law § 5-701(a)(1). Noting its prior “inconsistent” decisions on…
Read More No Part-Performance Exception for Contracts Not Capable of Performance Within One Year of Their MakingIn Gomez v J.C. Penny Corp., Inc., the Appellate Division, First Department reversed a denial of summary judgment for defendant J.C. Penny, and directed a judgment in defendant’s favor dismissing the complaint. In this negligence case, Plaintiff alleges that she slipped and fell on water near the bottom of an escalator going from the third to…
Read More Evidence of Inspection and No Complaints Result in Dismissal of Slip/Fall Suit Against J.C. PennyIn Humphrey v. Park View Fifth Ave. Assoc. LLC, the court modified a lower court’s order to grant plaintiff’s motion for summary judgment on liability on his Labor Law § 240(1) claim, and affirmed the denial of defendants’ motion for summary judgment on plaintiff’s common-law negligence and Labor Law § 200 claims. Plaintiff claimed that he…
Read More Court Holds in Favor of Injured Construction Worker on Labor Law 200 and 240(1) ClaimsIn Parker v. Dunn, the Supreme Court, Wayne County recently granted summary judgment for defendant Hazlitt’s 1852 Vineyards dismissing plaintiffs’ claims arising from a fatal motorcycle accident. The facts: The action arises from a motor vehicle accident which occurred on May 31, 2009, on State Route 414 in the Town of Hector, New York at approximately…
Read More Court Rejects Action Under “Dram Shop Act” Against VineyardAh, apartment living. Efficiency, environmental friendliness, and – of course – loud neighbors. (I came home today to find this note by my building’s entrance; since my apartment is on the 3rd floor and on the building’s west side, I’m fairly certain it isn’t referring to me.) In Brown v. Blennerhasset Corp., the Appellate Division,…
Read More Noises “Incidental to Normal Occupancy” Not a Private NuisanceIn Malouf v. Equinox Holdings, Inc., the Appellate Division, First Department affirmed the lower court’s granting of (1) plaintiff’s motion “for spoliation sanctions to the extent of precluding defendant from arguing at trial that the treadmill plaintiff was using at the time of her accident was operating properly or was free from defects”, and (2) third-party defendant Life…
Read More Failure to Preserve Allegedly Defective Treadmill Results in Spoliation Sanctions Against EquinoxIn Frechtman v. Gutterman, the Appellate Division, First Department affirmed the dismissal of a defamation claim brought by an attorney against his clients. Specifically, the court held that the complained-of-statements were non-actionable opinion, and were protected by absolute and qualified privileges. The facts: Plaintiff, A. Bernard Frechtman, a practicing attorney for more than 60 years,…
Read More Lawyer Sues Clients for Defamation, LosesIn Pecile v. Titan Capital Group, the Appellate Division, First Department, ruled on a number of discovery issues relating to, among other issues, plaintiffs’ social media postings. The case made headlines a few years back (e.g., here, here, and here) due to its racy allegations that financier Russell Abrams forced his assistant, plaintiff Danielle Pecile, to get prints of honeymoon…
Read More Court Rules on Discovery Issues in “Topless Wife Photo” Sexual Harassment Case Against Titan Capital and Russell AbramsA recent Appellate Division, Second Department, decision, Williams v. Spencer-Hall, illustrates the application of the general rule that: When the driver of an automobile approaches another automobile from the rear, he or she is bound to maintain a reasonably safe rate of speed and control over his or her vehicle, and to exercise reasonable care…
Read More Summary Judgment Should Have Been Granted For Rear-Ended Plaintiff