OPINION OF THE COURT DAVID B. COHEN , J. Blue River Gems Inc. (plaintiff) owned a gold and diamond necklace, that plaintiff valued at approximately $400,000. On August 8, 2013, plaintiff consigned the necklace to defendant S.V. & V. Diamond Corp. (SV & V) pursuant to a written memorandum. When SV & V obtained the necklace, the memorandum of consignment stated that the necklace "remained the property of Blue River Gems" and that SV & V acquired "no right or authority to sell, hypothecate...
OPINION OF THE COURT GISCHE J. This is a "put-back" action, involving residential mortgage backed securities (RMBS). Plaintiff U.S. Bank National Association, the trustee of the securitization trust, claims that a large number of the mortgages, originated by defendant, GreenPoint Mortgage Funding, Inc., and held by the trust, breached the representations and warranties that GreenPoint made regarding their quality. Although under the governing agreements GreenPoint was obligated to cure...
Aarons , J. Defendant is the president and a shareholder of Total Recall Message Center, Inc. and she also owns, in her individual capacity, the property and building where Total Recall and other tenants rent commercial office space. In January 2010, plaintiff, an employee of Total Recall, slipped and fell on an ice patch in the parking lot behind Total Recall while on a work-sanctioned break. Plaintiff subsequently commenced this negligence action alleging that she sustained personal...
Ordered that the judgment is modified, on the law and the facts, by deleting the provision thereof awarding damages in favor of the plaintiffs and against the defendants Kejo Enterprises, LLC, and Kenneth Bergstol for "real estate taxes in the sum of $36,991.64"; as so modified, the judgment is affirmed insofar as appealed from, without costs or disbursements, and the matter is remitted to the Supreme Court, Orange County, for the entry of an appropriate amended judgment. In 2005, the...
It is hereby ordered that the judgment so appealed from is unanimously modified on the law by denying petitioner's motion in its entirety and as modified the judgment is affirmed without costs. Memorandum: Petitioner is a not-for-profit corporation that operates numerous facilities for elderly residents at varying levels of care. Following construction of two facilities, The Woodlands and Orchard Grove Residences (Orchard Grove), on a single tax parcel, petitioner applied for a real property...
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs for reasons stated in the decision at Supreme Court (2015 NY Slip Op 52019[U] [Sup Ct, Monroe County 2015]).
It is hereby ordered that the order so appealed from is unanimously affirmed without costs. Memorandum: Respondent father appeals from an order that, inter alia, denied his application seeking to vacate an order entered upon his default in which Family Court determined that he willfully violated a child support order. The determination whether to vacate an order entered upon a default is left to the sound discretion of the court ( see Matter of Troy D.B. v Jefferson County Dept. of Social...
OPINION OF THE COURT PETERS , P.J. Appeal from a judgment of the Supreme Court (Kramer, J.), entered July 2, 2015 in Schenectady County, which granted a motion by defendants Elaine Cheon-Lee and Carenet Medical Group, P.C. for a directed verdict. In 2006, plaintiff was experiencing pain in her abdominal area and presented to defendant Elaine Cheon-Lee, an obstetrician-gynecologist, for treatment. After an ultrasound revealed a cyst on plaintiff's right ovary, Cheon-Lee performed a...
Ordered that the order dated July 1, 2015, is affirmed insofar as appealed from, with costs. "A defendant seeking to vacate a default in appearing or answering pursuant to CPLR 5015 (a) (1) must demonstrate both a reasonable excuse for the default and a potentially meritorious defense to the action" ( Sussman v Jo-Sta Realty Corp., 99 A.D.3d 787 , 788 [2012]; see Clover M. Barrett, P.C. v Gordon, 90 A.D.3d 973 [2011]). Here, the defendant Second Home Social Adult Day Care Center of 86th...
Plaintiff seeks a declaration that Newmark Knight Frank (and certain other entities) are additional insureds under a policy that defendant issued to Kras Interior Contracting Corp. Defendant's policy says, "The following are included as additional insureds: Any entity required by written contract ... to be named as an insured" (emphasis added). On October 11, 2012, Newmark sent a purchase order/agreement to Kras. It said, "THIS PURCHASE ORDER AND AGREEMENT IS A LEGAL AGREEMENT BETWEEN...
The Family Court's finding of neglect is supported by a preponderance of the evidence ( see Family Ct Act 1012 [f] [i] [B]; 1046 [b] [i]). The evidence established that respondent incurred positive toxicology results for phencyclidine (PCP) on March 12 and March 31, 2013, in the last trimester of her pregnancy, just before the subject child was born on April 3, 2013, and that she has a prior history of PCP abuse ( Matter of Omarion T. [Isha M.], 128 A.D.3d 583 [1st Dept 2015]). Moreover,...
Ordered that the order is affirmed, without costs or disbursements. The State of New York (hereinafter the petitioner) commenced this proceeding pursuant to Mental Hygiene Law article 10, also known as the Sex Offender Management and Treatment Act (hereinafter SOMTA), for the civil management of the appellant, a convicted sex offender whom the petitioner alleged required civil management ( see Mental Hygiene Law 10.06 [a]). A jury trial was held, after which the jury found that the...
Ordered that the order is reversed, on the law, without costs or disbursements, and the matter is remitted to the Family Court, Kings County, for a hearing and determination in accordance herewith. In November 2015, the mother commenced the instant paternity proceeding against the putative father. Thereafter, the putative father requested that the Family Court direct the parties and the child to submit to genetic marker testing. However, the attorney for the child objected and requested that...
Ordered that the order is affirmed, without costs or disbursements. The parties, who were never married, have two children together. Pursuant to a prior so-ordered stipulation, the parties agreed, inter alia, that the mother would have physical custody of the children and that the father would have visitation. The father appeals from an order which dismissed, without a hearing, his petition to modify the stipulation so as to award him physical custody of the children. Where parents enter into...
The Family Court correctly determined that the father had committed the family offense of harassment in the second degree, warranting a two-year order of protection ( see Family Ct Act 842). The father's criminal conviction of harassment in the second degree in connection with a September 20, 2011 incident "serves as conclusive proof of the underlying facts" in the family offense proceeding, "since he had a full and fair opportunity to contest the issues raised in the criminal proceeding" (...
Ordered that the appeal from so much of the order dated July 9, 2014, as denied those branches of the appellants' motion which were for leave to reargue their prior motion for summary judgment and for resettlement of the order dated January 15, 2014, is dismissed, without costs or disbursements, as no appeal lies from an order denying reargument, or from an order denying resettlement of the substantive or decretal provisions of a prior order or judgment ( see County of Suffolk v Long Is. Power...
Ordered that the appeals by Debra S. Filan are dismissed as abandoned ( see 22 NYCRR 670.8); and it is further, Ordered that the appeal by Ann Rothman, Gary Rothman, Vincent Sodano, and Bruce S. Reznick, trustee of the Bruce S. Reznick, P.C., Defined Benefit Pension Plan, from so much of the order entered February 28, 2014, as granted those branches of the motion of the plaintiff in action No. 3 which were for summary judgment on the amended complaint in that action insofar as asserted...
It is hereby ordered that the order insofar as appealed from is unanimously reversed on the law without costs, the cross motion is denied in its entirety, the motion is granted in its entirety, and the complaint against defendant Z-AXIS, Inc. is dismissed. Memorandum: In this action for breach of contract, plaintiff seeks to recover sales commissions totaling over $89,000 from Z-AXIS, Inc. (defendant). The sales for which plaintiff seeks the commissions were made by defendant, and the goods...
It is hereby ordered that the judgment so appealed from is unanimously affirmed and the matter is remitted to Seneca County Court for proceedings pursuant to CPL 460.50 (5). Memorandum: Defendant appeals from a judgment convicting him following a jury trial of insurance fraud in the third degree (Penal Law 176.20), falsifying business records in the first degree ( 175.10), defrauding the government ( 195.20), and falsely reporting an incident in the third degree ( 240.50 [3]). The charges...
