October 2011

Appellate Division Ruling Holds E-mail Correspondence May Create Binding Real Estate Contract

Posted on October 31, 2011

Naldi v. Grunberg, 80 AD3d 1 (1st Dept. 2010), leave to appeal denied, 2011 NY Slip Op. 71494 (NY May 3, 2011) At issue in Naldi v. Grunberg was whether the defendant had breached an agreement to give plaintiff a right of first refusal to purchase certain real property in New York City.  Plaintiff contended that the right of first refusal was granted by defendants in an email describing the terms of the contemplated transaction.  Defendants moved to dismiss theRead More→

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Article: Covering Your Assets: The Importance of Products Liability Due Diligence When Making an Acquisition

Posted on October 30, 2011

Some years back, I co-authored an article on the importance to businesses that are in the process of acquiring another company of undertaking thorough products liability due diligence prior to the acquisition.  The points are as true today as they were when the article was first written, so I thought I’d post the link here: ARTICLE 

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Defendant Not Liable for Plaintiff’s Auto Accident Injuries In Absence of Objective Proof of Serious Injury

Posted on October 28, 2011

Bowen v. Saratoga Springs City School District et al., N.Y. Supreme Court, Appellate Division, 3d Dept., Case No. 512164, decided October 20, 2011 In New York, a person injured in an automobile accident cannot recover non-economic damages in a negligence lawsuit against the insured driver of the other vehicle unless the injured plaintiff has suffered a “serious injury” as defined in section 5102 of the New York Insurance Law.  In Bowen, the Appellate Division granted summary judgment to the defendantRead More→

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Slip-and-fall Case Dismissed Where Plaintiff was not a Third Party Beneficiary of Snow Removal Contract

Posted on October 25, 2011

Carol Gibson v. Dynaserv Industries, Inc., Supreme Court of the State of New York, Appellate Div., 3rd Dept., Case No. 511962, decided October 20, 2011 On Thursday, the Appellate Division, Third Department, held that a defendant snow removal company hired by the plaintiff’s employer could not be held liable for injuries sustained by the plaintiff when she slipped on ice in her employer’s parking lot.  The respondent/defendant snow removal company had been hired under contract by the plaintiff’s employer toRead More→

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Co-Ownership of Real Property: Different Forms for Different Situations

Posted on October 19, 2011

Real property is often purchased by or conveyed to multiple owners – such as when a married couple buys a home.   When such a transaction occurs, there are a number of different ownership forms that can be selected from (by the purchasers, in the case of real estate transactions, or by the testator when he or she is drafting a will containing a devise of real property), each of which will affect the rights of the individuals in the ownershipRead More→

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Blind Persons Cannot Serve as Witnesses to Execution of Wills

Posted on October 13, 2011

In order for a will to be valid, a bevy of formal, technical requirements must be exactingly complied with.  Among these is the rule, codified in EPTL 3-2.1(a), that the testator’s signature at the end of the will must be made in the presence of at least two witnesses (or, if signed outside the presence of witnesses, presented to at least two witnesses and acknowledged to them as his or her signature on their last will and testament).  The witnessRead More→

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Appellate Division Ruling Holds Bank Lacks Standing to Foreclose on Residential Mortgage Loan

Posted on October 11, 2011

Bank of New York v. Silverberg et al., 86 AD3d 274 (2d Dept. 2011) On June 7, 2011, the Appellate Division, Second Department, dismissed a mortgage foreclosure proceeding based on payment default after holding that the plaintiff bank lacked standing to sue because it could not prove it was the owner of the underlying mortgage note.  The Bank obtained its interest in the mortgage as an assignment from Mortgage Electronic Registration Systems, Inc. (“MERS”), a national mortgage registry used byRead More→

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COURT OF APPEALS AFFIRMS LIMITED AVAILABILITY OF ASSUMPTION OF RISK DEFENSE AS COMPLETE BAR TO RECOVERY

Posted on October 6, 2011

Trupia v. Lake George Central School District, 14 NY3d 392 (2010) Last spring, the Court of Appeals clarified the limited availability under New York law of the doctrine of assumption of risk as a complete defense to claims of negligence in suits involving personal injuries.  The underlying facts of the case were straightforward:  a child was injured during a summer program administered by the defendant school district when he slid down and fell off of a banister, and was seriouslyRead More→

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Troy City Court Suppresses Drug Evidence Seized from Passenger in Car Pulled Over Due to Warrant for Driver’s Arrest

Posted on October 3, 2011

In People v. Brandolino, 2011 NY Slip Op. 51747(U), September 26, 2011, the Troy City Court ruled that a glass pipe with drug residue was improperly seized by a police officer from the passenger of a vehicle stopped due to the existence of a warrant for the driver’s arrest.  The ruling was made after the court conducted a Mapp hearing, a type of pre-trial hearing the defense may request in criminal matters in order to challenge the propriety of aRead More→

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