OPINION OF THE COURT MOSKOWITZ , J. In this appeal, we are asked to decide whether plaintiff U.S. Bank National Association may pursue its claims for breach of contract against defendant (GreenPoint). We find that although the relevant contracts are unambiguous, the record presents an issue of fact as to whether U.S. Bank has standing to sue under the HELOC (home equity lines of credit) agreements. The record demonstrates as a matter of law, however, that U.S. Bank does not have...
DAVID B. COHEN , J. It is Defendants' motion to vacate the note of issue is granted to the extent set forth herein and plaintiff's motion for summary judgment is granted in part and denied in part. On December 5, 2011, plaintiff, as tenant, and defendant Jim Duffy LLC, as landlord, entered into a sixteen-month residential lease (the "First Lease"). The last section of the Rider, Section 27 states "[a]s a condition to induce the landlord to enter into a lease for this apartment, to offset...
OPINION OF THE COURT CHAMBERS , J. This appeal presents an opportunity to discuss in some detail the proper application of CPLR 3211 (a) (1) and (7) in the context of an action sounding in defamation. I. Background The plaintiff, Maurice R. Greenberg, is the former chairman and chief executive officer of American International Group, Inc. (hereinafter AIG), and the defendant, Eliot L. Spitzer, is the former Attorney General of the State of New York (hereinafter the NYAG). In May 2005,...
OPINION OF THE COURT WEBBER , J. In these two consolidated wrongful death actions arising out of the catastrophic crane collapse on East 91st Street in Manhattan on May 30, 2008, defendants New York Crane & Equipment Corp. (NY Crane), J.F. Lomma, Inc. (JF Lomma), and James F. Lomma (Lomma) (collectively referred to as defendants) appeal from a judgment awarding plaintiff Leo $7.5 million for the preimpact terror and $8 million for the pain and suffering of her decedent, and $24 million in...
OPINION OF THE COURT Per Curiam . The parties were married on March 5, 2002. In 2005, the mother told the father that she could not tolerate having sexual relations with men, and that she was sexually attracted to women. The parties were divorced by a judgment of divorce dated March 6, 2009. They have three children together, a son and two daughters. At the time of the divorce, the parties' older daughter was five years old, their son was three years old, and their younger daughter was two...
OPINION OF THE COURT MANZANET-DANIELS , J. In Tzolis v Wolff ( 10 N.Y.3d 100 [2008]), the Court of Appeals recognized the right of a member to sue derivatively on behalf of an LLC, leaving it to the courts to further define "[w]hat limitations on the right of LLC members to sue derivatively may exist" ( id. at 109). This appeal concerns the propriety of the appointment of an outside attorney to serve as the sole member of a special litigation committee (SLC) to determine the merits of...
OPINION OF THE COURT Per Curiam . The Grievance Committee for the Tenth Judicial District served the respondent with a verified petition dated July 13, 2016, containing two charges of professional misconduct. After a hearing on February 14, 2017, the Special Referee issued a report sustaining both charges. The Grievance Committee now moves to confirm the report of the Special Referee and to impose such discipline as the Court deems just and proper. The respondent has submitted a response,...
DECISION/ORDER GERALD LEBOVITS , Judge . Plaintiffs, Nancy J. Hament and Richard J.J. Scarola, filed a summons and complaint against defendant Kevin P. Fitzgerald, President of Ark Construction, Inc. (ARK), alleging six causes of action, specifically trespass, intentional tortious injury to property, prima facie tort, personal liability for intentional torts, per se and absolute liability for violations of statutory and regulatory law, and declaratory judgment as to personal liability...
OPINION OF THE COURT LEVENTHAL , J. In these consolidated appeals, where one brief was filed on behalf of all four defendants, several issues are presented relating to the empaneling of an anonymous jury. We hold that the trial court's empaneling of an anonymous jury, in violation of CPL 270.15, deprived the defendants of their right to a fair trial, and that error cannot be deemed harmless. Accordingly, we reverse the judgments of conviction and order a new trial. Background The...
OPINION OF THE COURT DAVID BENJAMIN COHEN , J. It is decided that plaintiff's motion for an injunction pursuant to RPAPL 871 or in the alternative to convert this matter to an RPAPL 881 license case is denied and defendant's motion to dismiss is granted. The facts are not in dispute. Defendant * owns/controls the building located at 30 Irving Place. Defendant was issued several New York City Department of Buildings violations for issues relating to 30 Irving Place's exterior fa ade....
OPINION OF THE COURT MANZANET-DANIELS , J. The 17-year-old plaintiff received contraceptive counseling from a nurse practitioner at a school clinic operated by defendant Montefiore Medical Center. Plaintiff was noted as having a family history of heart disease and a chronic heart murmur. 1 In April 2010, plaintiff was dispensed a contraceptive device known as a NuvaRing, a hormonal method associated with an increased risk of developing blood clots. The device is inserted internally by...
OPINION OF THE COURT McCARTHY , J.P. Appeal from a judgment of the Supreme Court (Elliott III, J.), entered June 17, 2016 in Albany County, which dismissed petitioners' application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent Commissioner of Education partially dismissing petitioners' challenge to certain conditions imposed upon their receipt of certain state funds. In March 2014, the Legislature amended article 73 of the Education Law to add...
DECISION/ORDER GERALD LEBOVITS , Judge . Motion sequences 01 and 02, in which plaintiffs move for a temporary restraining order to maintain the status quo of 12 Whitwell Place, Staten Island, New York 10304, and motion sequence 03, in which defendants move for partial dismissal of the complaint, are consolidated for disposition. On November 26, 2016, plaintiffs commenced this action against defendants regarding three different properties, 1 asserting six causes of action — fraud, unjust...
Ordered that the judgment is affirmed. The defendant's challenge to the legal sufficiency of the evidence supporting his conviction of grand larceny in the first degree and scheme to defraud in the first degree is unpreserved for appellate review ( see CPL 470.05; People v Hawkins, 11 N.Y.3d 484 , 491-492 [2008]). In any event, viewing it in the light most favorable to the prosecution ( see People v Contes, 60 N.Y.2d 620 , 621 [1983]), the evidence was legally sufficient to establish the...
Ordered that the order is affirmed insofar as appealed from, with costs. The plaintiff commenced this action to recover damages for personal injuries that she allegedly sustained in a bicycle accident that occurred on March 30, 2013. At the time of the accident, the plaintiff was bicycling on the Long Island Expressway service road in Nassau County. The plaintiff served a timely notice of claim, which included a detailed description of the accident location and photographs of that site. The...
In this legal malpractice action, plaintiff, the victim of a hit-and-run accident, alleges that defendants, who represented him in the underlying personal injury action, were negligent in failing to prepare and present the testimony of the sole eyewitness; that defendants' negligence caused a verdict against him; and that he sustained actual damages. Specifically, plaintiff alleges that, prior to the eyewitness's deposition testimony two years after the accident, defendants failed to refresh...
Adjudged that the determination is confirmed, the petition is denied, and the proceeding is dismissed on the merits, with costs. On June 16, 2014, while the petitioner was on duty as a mechanical equipment operator for the Town of Patterson, he was randomly selected to have his urine tested for the presence of drugs. The petitioner's urine tested positive for cocaine, and he was issued an amended notice of discipline alleging misconduct and incompetency as a result of the positive drug test....
Ordered that on the Court's own motion, the notice of appeal from so much of the order as, sua sponte, directed the dismissal of the action as abandoned pursuant to CPLR 3404, is deemed to be an application for leave to appeal from that portion of the order, and leave to appeal from that portion of the order is granted ( see CPLR 5701 [c]); and it is further, Ordered that the appeal from so much of the order as denied, as academic, the motion of the defendant Jeffrey Samel & Partners for...
Ordered that the order is affirmed insofar as appealed from, with costs. The plaintiff commenced this action seeking, inter alia, a declaration that the defendant Volkswagen Group of America, Inc., doing business as Audi of America, Inc. (hereinafter Audi), violated Vehicle and Traffic Law 463 (2) (ff). The complaint alleged that in May 2013, the plaintiff purchased the assets of Anchor Audi, an Audi dealership in Lynbrook, New York, and entered into a dealer agreement with Audi. The...
Mulvey , J. Petitioner is the owner of property in the Town of Hoosick, Rensselaer County on which she operates a dog training and handling business. In April 2015, following a noise complaint from a neighbor, the Code Enforcement Officer of respondent Town of Hoosick determined that petitioner's use of her property was in violation of the Town's Land Use Law and that a special use permit and site plan approval were required. Petitioner was similarly advised by the Town's Zoning Board of...
