General Litigation Research

Abandonment under the Estates Powers and Trusts Law (“EPTL”)

A parent is not supposed to outlive his/her children. This is a tragic truth that can only be enhanced when determining that child’s estate. Due to the statute opens in a new windowEPTL 3-1.1, a child under 18 dies intestate, meaning without a will.(1) The laws of intestacy clearly state that in the event the decedent is not married and has no children, his estate shall be inherited by the decedent’s parents. But what happens when one of those parents has not been there for the child? Either due to divorce or other circumstances the child and parent do not have a relationship; is that parent still entitled to collect his distributive share of the child’s estate?… (more)

Injured person can amend complaint to assert claims against third parties under CPLR 1009

When you have been injured due to an accident, it is common to look to litigation as a way of compensation for pain, suffering, lost wages and other damages, especially when the accident was not your fault.  But what happens when you start a litigation against one party when, in fact, there is another, necessary party that should have been sued but was not?… (more)

Commercial tenants/Sublessors are responsible entities under the Labor Law

Pursuant to binding Court of Appeals precedents, as well as Appellate Division, First and Second Department precedents, commercial tenants/sublessors are responsible entities for purposes of opens in a new windowLabor Law Section 240(1)…. (more)

Liability for Not Having Safety Devices

Binding precedents from all four Departments of the Appellate Division, including Second Department precedents hold that where it is uncontested that the plaintiff was injured as a result of falling from a ladder, and “at the time of his fall, there were no safety belts, nets, or other safety devices in the area, and he was not equipped with any safety devices. Under the circumstances, the plaintiff established his prima facie entitlement to judgment as a matter of law on the issue of liability on the cause of action pursuant to opens in a new windowLabor Law Section 240(1)”…. (more)

Obtaining Leave of Court to Submit Evidence in Reply Papers for ‘Good Cause Shown’

In litigation, parties may bring motions for dismissal of the action or affirmative defenses, or move for ‘summary judgment’ (that there are no genuine issues of fact and the judge can decide the case on the law alone). Generally, the moving party puts forward all of its proof in support of its motion, including any affidavits, documents or photographs. The opposing party then puts forward all of its proof. At that point, it is inappropriate for either party to provide additional facts in reply papers, as courts want to give each party an opportunity to properly respond to the facts alleged in the original papers. It would otherwise be unfair.

Sometimes, however, additional facts or proof become necessary for various reasons. In that situation, the party seeking to provide additional proof must show “ opens in a new windowgood cause” for having to do it…. (more)

Plaintiffs Should Be Permitted to Amend the Complaint Pursuant to CPLR 3025

Civil Practice Law and Rules [CPLR] Section 3025 authorizes the amendment of a pleading in an action, including the Complaint of the plaintiff. According to subsection (b) of opens in a new windowCPLR 3025, leave of court is needed to amend a pleading once issue has joined; however, it should be freely given to a party.

New York courts have held that, in the absence of prejudice to the defendant, the amendment of a pleading should be freely granted by a court. It is also well established law that a motion to amend a pleading should be freely given absent a showing by an opposing party of surprise or prejudice…. (more)

Repairs are a covered activity under the Labor Law

Binding precedents of the Court of Appeals, as well as the Appellate Division, First and Second Department hold that a worker assigned by his employer to perform repairs to a damaged or inoperable structure are a covered activity for purposes of the Labor Law, not merely routine maintenance…. (more)