Invoice or legal notice from New York Law Journal, Aug

zTizruw.? <u>u JJ., VCTncui.- - aiaeTCLiijn or me vriar-coui i v-see \jramian~— - nTme-piamtiiRj sauiiiiiiea pnorojfrapris— ALTMAN, J.P., H. MILLER, COZIER and ted to the'Bar at a term of the Appellate By Ritter, J R; Florio, Smith and MiJier, u Southgate At Bar Harbor Home Owners' of the location of the accident and the considered on appeal from the amended Division of the Supreme Court in the Sec­ z ■< JJ. MASTRO, JJ., concur. ond Judicial Department on April 12, Assn, 207 AD2d 526,527; Bardales v. Blades, 191 AD2d 667, 668), reversal is injured plaintiff identified the site of the accident on one of the photographs. judgment (see CPLR550I[aKi]). The plaintiff. Citibank, N.A. (here­ z By Miller, J.P.; Goldstein, Luciano and 1989. FUENTES, ap plf, v. BROOKHAVEN o MEMORIAL HOSPITAL, res, CAYPINAR, Cozier, JJ. Mr. Soviero has been informed by the warranted where the trial court improvi- dently exercises its discretion (see P.ous- There was no evidence that the appel­ lant suffered prejudice (see General inafter Citibank), commenced this action in 2000 to foreclose a mortgage originally o ETC., def — GNDEX NO. 2477/95) — In FERNANDES plf-res, v. LAWRENCE ap, Grievance Committee that evidence of g an action to recover damages for med­ ical malpractice, etc., the plaintiff AIELLO, SR., def-res — (INDEX NO. 29541/00) — In an action to recover his professional misconduct has been adduced by its ongoing investigation and sodimou u. Zafiriadis, supra at 569), While “[tjhe court has discretion to accept law­ Municipal Law §50-e[6]: D'Alessandro v. New York City Tr. Auth, 83 NY2d 891,893; recorded in 1987, which was consolidat­ ed with a second mortgage in 1993 and that he would be the subject of charges office failure as a reasonable excuse ... ‘a Miller v. New York City Tr. Auth., 6 AD3d subsequently amended and restated in Carmen Fuentes appeals from an order damages for personal injuries, etc., (1) 1997 in the amount of $113,150.95 {here­ in a disciplineiry proceeding to be recom­ pattern of willful default and neglect’ 405; Matter ofBarrios v. Cily ofNew Yoth. of the Supreme Court, Suffolk County the defendants John Lawrence, Lazy should not be excused” (Poussodimou v. inafter the Senior Mortgage). The priori­ o (Werner, J.), entered March 19, 2003, River Campground, and Mountain mended to the court. Mr. Soviero admits 300 AD2d 480; Herrera v. City of New "0 o which granted the motion of the defen­ Meadows Development Corporation that in May 2001, in his capacity as the Zafiriadis, supra at 569, quoting Gannon York, 211 AD2d 759). ty of the Senior Mortgage, which c o seller’s attorney, he received from the V. Johnson Scale Co., 189 AD2d 1052 [cita­ The appellant's remaining contentions encumbers all of the subject premises CT dant Brookhaven Memorial Hospital, in appeal from so much of an order of the tions omitted]; see Incorporated Vil. of (known as Section 63, Block 66, Lots 51 are without merit. effect, for summary judgment dismiss­ Supreme Court, Kings County proposed purchaser signed contracts of sale and a down payment check in the Hempstead v. Jabtonsky, 283 AD2d 553; RITTER, J.R, GOLDSTEIN, MASTRO through 64 on the Nassau County Tax o' ing the complaint insofar as asserted (Ruchelsman, J.), dated October 21, O> 2002, as denied their motion for summa­ amount of $31,500 payable to him as Espinal v. City of New York, 264 AD2d 806; and FISHER, JJ., concur. Map), is undisputed. "0 Ca5 against it. ry judgment dismissing the complaint escrowee. Pursuant to the contract of Koiajo V. City of New York, supra at 512). By Florio, J.P.; Miller, Rivera and Uf- In 1987 Citibank also obtained and o O) ORDERED that the order is reversed Here, the defendant’s failure to appear recorded a separate mortgage, in the ;:3. O insofar as asserted against them, and sale, the down payment was to be held son, JJ. on the law, with costs, the motion is for the preliminary conference on Janu­ amount of $750,000, which encumbered denied, and the complaint is reinstated (2) the defendant Aqua-Jet Pools & in escrow until the closing or the termi­ S2\NZ, etc., plf-res, v. DISCOUNT ary 2, 2003, and to comply with the pre­ only part (i.e., lots 51 through 61) of the insofar as asserted against the defen­ Services, Inc., separately appeals (a), as nation of the contract. Mr. Soviero failed to turn over any of the $31,500 when liminary conference order of the same AUTO, ap, RAMSAY, def-res — QNDEX subject premises (hereinafter the Origi­ o dant Brookhaven Memorial Hospital. limited by its brief, from so much of the another attorney assumed representa­ date, and its failure to respond to the NO. 13891/02) — In an action, inter alia, nal Mortgage). In 1993 the defendant o The plaintiffs commenced this action same order as denied its motion for plaintiff’s motion to strike Its answer or to recover damages for wrongful death, Renate Kenney obtained and recorded a o to recover damages for medical mal­ summary judgment dismissing the com­ tion of the seller prior to the closing or to promptly move to vacate the order the defendant Discount Auto appeals mortgage in the amount of $170,000, c practice allegedly arising from treatment plaint insofar as asserted against it, and at the closing on July 23,2001. Instead, he used it for personal expenses. The dated June 30, 2003, constituted “a pat­ from an order of the Supreme Court, which encumbered all of the subject 3 rendered by the defendant Dr. Erol Y. (b) from an order of the same court tern of willful default and neglect” which Kings County (Dowd, J.), dated October premises (hereinafter the Kenney Mort­ CD Caypinar at the defendant Brookhaven dated November 19, 2002, which grant­ transaction concerned Mr. Soviero's for­ 31, 2003, which denied its motion for 3 cannot be excused (Roussodimou v. gage). Approximately one month later, Memorial Hospital (hereinafter ed the plaintiffs’ cross motion for leave mer marital residence, which had been summary judgment dismissing the com­ deeded to his then-wife in March 2001. Zafiriadis, supra at 569, quoting Gannon also in 1993, the defendant Small Busi­ Brookhaven). In 1997 the Supreme Court to amend their complaint to add a V. Johnson Scale Co , 189 AD2d 1052 [cita­ plaint and all cross claims insofar as ness Administration (hereinafter the Mr. Soviero further admits that he was granted Dr. Caypinar’s motion to dismiss cause of action based upon strict prod­ tions omitted]: see Koiajo u. City of New asserted against it and granted the SBA) recorded a mortgage, which was ucts liability against it. found in contempt of court more than plaintiff’s cross motion for summary the complaint insofar as asserted York, supra at 512; see also Incorporated later amended and restated in the against him on the ground that the ORDERED that the appeal by the once for his failure to pay child support, judgment on the issue of ownership of resulting in his incarceration and the Vil. of Hempstead v. Jablonsky, supra at amount of $143,400, encumbering part of plaintiffs failed to serve a timely notice defendant John Lawrence is dismissed 554; Espinal v. Cily ofNew York, supra at the subject vehicle. the subject premises (hereinafter the of claim upon him pursuant to General as abandoned (see NYCRR 670.8[ej); and suspension of his driver’s license. Mr. ORDERED that the order is modified, Soviero also failed to post the undertak­ 806). SBA Mortgage). Municipal Law §50-d and judgment was it is further, Additionally, the defendant’s affirma­ on the law, by deleting the provision In 1994 Citibank’s agent erroneously entered dismissing the complaint inso­ ORDERED that the order dated Octo­ ing ordered by the Family Court, Suffolk thereof granting the cross motion and County. tion in support of its motion failed to executed and recorded an instrument far as asserted against him (see Fuentes ber 21, 2002, is reversed insofar as establish a meritorious defense (Koiajo substituting therefor a provision denying discharging the Original Mortgage- u. Brookhaven Mem. Hosp., 251 AD2d reviewed, on the law, the motions are Mr. Soviero acknowledges his inability the cross motion; as so modified, the to defend himself on the merits against V. City of New York, supra at 513; Peterson According to Citibank, this error was dis­ 540). Brookhaven contends that dis­ granted, and the complaint is dismissed V. Scandurra Trucking Co., 226 AD2d 691, order is affirmed, with one bill of costs to covered in the latter part of 1996. Instead missal of the complaint insofar as insofcir as asserted against the appel­ any disciplinary charges and avers that the defendant Discount Auto payable by his resignation is freely and voluntarily 692). Contrary to the defendant’s con­ of seeking to reinstate the Original Mort­ asserted against It is warranted based lants Lazy River Campground, Mountain the plaintiff-respondent. gage to its former status and priority. tendered and that he has not been sub­ tention, the allegations of the complaint on res judicata. Brookhaven argues that, Meadows Development Corporation, and On April 5, 2000, the defendant Tonio Citibank, in 1997, obtained and recorded jected to coercion or duress by anyone, were sufficiently specific that it was pos­ because its alleged liability is vicarious Aqua-Jet Pools & Services, Inc., and it is sible for it to demonstrate a meritorious Ramsay purchased a 1990 Lexus automo­ a new mortgage in the amount of only, dismissal of the complaint insofar further, Mr. Soviero has discussed his decision bile from the defendant Discount Auto to resign with persons whose advice and defense prior to conducting discovery. $694,753.73, encumbering all of the sub­ as asserted against Dr. Caypinar ORDERED that the order dated SANTUCCI, J.R. H. MILLER, LUCIANO. (hereinafter the appellant), at its busi­ ject premises (hereinafter the Replace­ requires dismissal of the complaint inso­ November 19,2002, is reversed, on the counsel he respects. He is fully aware of ness premises in Pennsylvania. To prove the implications of submitting a resigna­ CRANE and SPOLZINO, JJ.. concur. ment Mortgage). For purposes of far as asserted against it. The Supreme law, the cross motion is denied; and it is his status as an insured driver, Ramsay establishing the seniority of the Replace­ further, tion, including being barred by Judiciary By Santucci, J.P.; Goldstein, Luciano produced an insurance card, issued by Court granted the motion. We reverse. ment Mortgage, Citibank attempted to ORDERED that one bill of costs is Law §90 from seeking reinstatement for a and Mastro, JJ. Government Employees Insurance Com­ The doctrine of res judicata holds contractually subordinate both the SBA that, as to the parties in a litigation and awarded to the appellants Lazy River period of at least seven years. KATZ res, v. SEMINOLE REALTY pany (hereinafter GEICO), showing that Mr. Soviero avers that his resignation Mortgage and the Kenney Mortgage. those in privity with them, a judgment Campground and Mountain Meadows CORR def, DITMAS MANAGEMENT Ramsay had coverage for a 1989 Mazda. However, Citibank was unable to obtain on the merits by a court of competent Development Corporation, and the is submitted subject to any application CORP, ap — (INDEX NO. 24930/99) — In The appellant thus issued a 30-day tem- which could be made by the Grievance a subordination agreement from the jurisdiction is conclusive of the issues of appellant Aqua-Jet Pools & Services, Inc., an action to recover damages for per­ portiry registration and paper license SBA, and has not produced a duly exe­ fact and questions of law necessarily appearing separately and filing separate Committee to direct him to make restitu­ sonal injuries, etc., the defendants plate for the Lexus, and permitted Ram­ tion and/or to reimburse the Lawyer’s cuted subordination agreement with decided therein in any subsequent briefs. Ditmas Management Corp, and say to drive the Lexus off the lot. Ram­ respect to the Kenney Mortgage. In 2001 action (see Ottv. Barash, 109 AD2d 254). In an action alleging negligence arising Fund for Client Protection, pursuant to Seminole Realty Co., appeal from an say did indeed arrange for GEICO to the SBA Mortgage was assigned to the However, the dismissal of a complaint as out of a diving accident in a swimming Judiciary Law §90(6-a). He acknowledges order of the Supreme Court, Kings cover the Lexus. Such coverage was in the continuing jurisdiction of the court defendant Lake Highlands, LLP (here­ against one party need not be given res pool, a defendant’s motion for summary County (Martin, J.), dated January 13, place when, on April 17,2000, the Lexus, inafter Lake Highlands). judicata effect as against another vicari­ judgment should be granted where “the to make such an order and specifically 2004, which denied their motion for still bearing the temporai'y Pennsylvania waives the opportunity afforded him by While conceding that the seniority of ously liable for the same conduct when record eliminates any legal cause other summary judgment dismissing the com­ license, struck and killed the plaintiff’s the Replacement Mortgage could not be the dismissal was based upon a defense than the reckless conduct of the plain­ Judiciary Law §90(6-a)(f) to be heard in plaint insofar as asserted against them. decedent. opposition thereto. established vis—vis Lake Highlands, that was personal to that party (see tiff” (Kriz V. Schum, 75 NY2d 25,34; see ORDERED that the order is reversed, The Supreme Court erred in granting Citibank contended that the Kenney Restatement [Second] Judgments Smith V. Stark. 67 NY2d 693; Boltax v. Joy The Grievance Committee urges on the law, with costs, the motion is the plaintiff's cross motion for summary acceptance of the proffered resignation. Mortgage should be equitably subordi­ §51[ll[b]). Here, Brookhaven was not a Day Camp, 67 NY2d 617). Summary judg­ granted, and the complaint is dismissed judgment on the issue of the owuership nated to the Replacement Mortgage. The “public institution” within the meaning ment is an appropriate remedy in swim­ Inasmuch as the proffered resignation insofar as asserted against them. of the Lexus on the theory that the complies with all appropriate court Supreme Court agreed and, in the order of General Municipal Law §50-d and, ming pool injury cases when from his or The injured plaintiff alleged that he appellant was estopped from denying appealed from, determined that the therefore, no notice of claim pursuant to her “general knowledge of pools, his [or rules, it is accepted, and effective imme­ slipped and fell due to the presence of ownership because it breached its duty Replacement Mortgage had priority over that section need have been served her] observations prior to the accident, diately, Clement M. Soviero is disbarred, water on a staircase located in a building to verify that Ramsay possessed insur­ and his name is stricken from the roll of the Kenney Mortgage but not over the upon it (see Thaw v. Onyebeke, 294 cind plain common sense,” the plaintiff owned by the defendant Seminole Realty ance to cover that vehicle (see Brown v. SBA Mortgage. As a result, the Supreme AD2d 490). To the extent that our deci­ should have known that, if he or she attorneys and counselor s-at-law. Co., and managed by the defendant Dit­ Harper, 231 AD2d 483), as the plaintiff Court initially allowed the foreclosure sion in Fuentes v. Brookhaven Mem. dove into the pool, the area into which PRUDENTl, P.J., RITTER, SANTUCCI, mas Management Corp. To impose liabil­ improperly raised this argument for the FLORIO and GOLDSTEIN, JJ., concur. sale to proceed with respect to the Hosp, (supraj may be read to the con­ he or she dove contained shallow water, ity upon a defendant in a slip-and-fall first time in her reply papers (see Canter Senior Mortgage, and directed that such trary, it should not be followed. Accord­ and, thus, posed a danger of injury ORDERED that the resignation of case, there must be evidence tending to V. East Nassau Med. Group, 270 AD2d 381; Clement M. Soviero is accepted and sale be free and clear of the Kenney ingly, the dismissal of the complaint as (Smith V. Stark, supra at 694; .see Mason v. show the existence of a dangerous con- Pinkston V. ITefss, 238 AD2d 393). As a Mortgage, but remain subject to both the against Dr. Caypinar was on a basis per­ Anderson, 300 AD2d 551,552). directed to be filed; and it is further, dition and that the defendant either <cre- result, the appellant was deprived of a ORDERED that pursuant to Judiciary Replacement Mortgage and the SBA sonal to him that was not available to The plaintiff Francisco Fernandes ated the defect or had actual or fair opportunity to proffer Ramsay’s Mortgage. However, pursuant to a stipu­ Brookhaven. Further, the dismissal was (hereinafter the plaintiff), a 29-year-old Law §90, effective immediately. Clement constructive notice of it (see Gordon t). GEICO policy to prove that it contained a lation entered into by the parties, the not based upon and did not determine ' experienced swimmer and diver, was M. Soviero is disbarred and his name is American Museum of Natural History, 67 provision covering the Lexus as required stricken from the roll of attorneys and Supreme Court entered an amended the merits of the underlying allegations injured when, after sitting poolside for NY2d 836: Sadowsl^ v. 2175 Wantagh by 11 NYCRR 60-1.1(d)(1)®, or other­ judgment of foreclosure ordering the , of medical malpractice (see Siegel, NY approximately 10 minutes, he dove head counselors-at-Iaw; and it is further, Ave. Corp., 281 AD2d 407; King v. New wise to respond to the plaintiff’s argu­ ORDERED that Clement M. Soviero sale of the subject premises to proceed Prac §446 [3d edj; cZ Perrone v. Grover. first into the four-foot deep swimming York City Tr. Auth., 266 AD2d 354 Patrick ment (see McCarthy v. City of New York, 5 free and clear of the liens created, inter 272 AD2d 312; Matter of Edward Joy Co. pool of the appellant Lazy River Camp­ shall promptly comply with this court’s V. Cho's Pruit & Vegetables, 248 AD2d AD3d 445; Johnston v. Continental Broker- rules governing the conduct of dis­ alia, by theKenney Mortgage, the SBA V. Hudacs, 199 AD2d 858, 860). Accord­ ground. The appellants Lazy River Camp­ 692). The appellants established their Dealer Corp., 287 AD2d 546). Insofar as Mortgage, and the Replacement Mort­ ingly, application of the doctrine of res ground and Mountain Meadows barred, suspended, and resigned attor­ prima facie entitlement to judgment as a this issue may be reviewed on this neys (see 22 NYCRR 691.10); and it is gage, and directing that such liens attach judicata to dismiss the complaint as Development Corporation (hereinafter matter of law by demonstrating that they record, it appears that an issue of fact to any surplus funds arising from the against Brookhaven was not warranted. the campground appellants) established further, neither had notice of the condition com­ exists as to whether the appellant satis­ ORDERED that pursuant to Judiciary sale, after repayment, inter alia, of the RITTER, J.P., FLORIO, SMITH and H. their prima facie entitlement to judg­ plained of nor created it (see Manzione fied its insurance verification obliga­ MILLER, JJ., concur. ment as a matter of law by demonstrat- Law §90, effective immediately, Clement V. Wal-Mart Stores, 295 AD2d 484). In tions. Continued on the following page