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Failure to Raise Denial of Constitutional Right to Present a Complete Defense Precluded Appeal

The Second Department noted that the defendant’s failure to raise the denial of his constitutional right to present a complete defense and confront witnesses (re: cross-examination of victim about an alleged motive to fabricate) at trial rendered the issue unpreserved for appellate review.  People v Simmons, 2013 NY Slip Op 03861, 2nd Dept, 5-29-13

 

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IN THIS REAR-END TRAFFIC ACCIDENT CASE, WHERE PLAINTIFF WAS AN INNOCENT PASSENGER, DEFENDANTS’ FAILURE-TO-STATE-A-CAUSE-OF-ACTION AFFIRMATIVE DEFENSE SHOULD NOT HAVE BEEN STRUCK BECAUSE THE MOTION TO STRIKE AMOUNTED TO TESTING THE SUFFICIENCY OF PLAINTIFF’S OWN CLAIM (SECOND DEPT).
LAW FIRM SANCTIONED FOR FAILURE TO APPEAR AT A MANDATORY MEDIATION SESSION TO ATTEMPT TO RESOLVE THE MATTER ON APPEAL (SECOND DEPT).
IN THIS FORECLOSURE ACTION, THE WRONG TYPEFACE IN THE RPAPL 1303 NOTICE REQUIRED DENIAL OF PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT (SECOND DEPT).
WHERE DEFENDANT DOCTOR, IN A MOTION FOR SUMMARY JUDGMENT, DOES NOT ADDRESS THE ALLEGATIONS OF PROXIMATE CAUSE IN THE MEDICAL MALPRACTICE COMPLAINT, THE PLAINTIFF NEED NOT ADDRESS PROXIMATE CAUSE IN OPPOSITION TO THE MOTION.
THE BANK DID NOT OFFER A REASONABLE EXCUSE FOR FAILURE TO TAKE PROCEEDINGS FOR A DEFAULT JUDGMENT WITHIN A YEAR AND DID NOT SUBMIT AN ADEQUATE LOST NOTE AFFIDAVIT; THE DEFAULT JUDGMENT IN THIS FORECLOSURE ACTION SHOULD NOT HAVE BEEN GRANTED; THE ACTION IS DEEMED ABANDONED (SECOND DEPT).
FAMILY COURT SHOULD HAVE GRANTED A PETITION SEEKING AN ORDER FOR FINDINGS REQUIRED FOR SPECIAL IMMIGRANT RESIDENT STATUS.
THE PLAINTIFF BICYCLIST COULD NOT IDENTIFY THE CAUSE OF HIS FALL AND THE CITY DID NOT HAVE WRITTEN NOTICE OF ANY ROADWAY DEFECTS IN THE AREA; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).
DEFENDANT GRANDFATHER DID NOT HAVE A DUTY TO CONTROL HIS COLLEGE-AGE GRANDSON IN THIS ROAD RAGE INCIDENT, THEREFORE THE NEGLIGENCE ACTION WAS PROPERLY DISMISSED, HOWEVER THE AIDING-AND-ABETTING ASSAULT CAUSE OF ACTION AGAINST DEFENDANT GRANDFATHER SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

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