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RESPONSE TO A JURY NOTE MAY HAVE MISLED THE JURY TO CONCLUDE THEY COULD MAKE THEIR OWN LAY JUDGMENT, AS OPPOSED TO RELYING ON EXPERT OPINION, ABOUT WHETHER DEFENDANT SEX OFFENDER SUFFERED FROM A MENTAL ABNORMALITY IN THIS CIVIL MANAGEMENT PROCEEDING, ISSUE REVIEWED ON APPEAL IN THE INTEREST OF JUSTICE, NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Duffy, over a dissent, reversed the finding that defendant sex offender (Timothy R.) suffers from a mental abnormality and requires civil commitment and ordered a new trial. The jury sent out a note asking whether they must agree with the diagnosis of one of the experts to find defendant has a mental abnormality. The court, over defendant’s counsel’s objection, answered “no.” On appeal defendant argued that the jury was effectively told it could ignore the experts and come to their own judgment on the mental abnormality issue. Although that specific argument was not made below, and therefore was not preserved, the Second Department reviewed it in the interest of justice and held that the jury would have to agree with an expert’s diagnosis to find defendant suffered from a mental abnormality:

… [C]ontrary to the Supreme Court’s response to the jury note, in order to conclude that Timothy R. has a mental abnormality, the jury was required to accept expert testimony as to at least one diagnosis that meets the legal predicate for mental abnormality. When the court answered the note in the negative and reiterated to the jury the general instruction as to accepting or rejecting all or some of an expert’s testimony as it sees fit … , the jury could have been misled into relying solely upon its own lay opinion or so much of the expert testimony as relied upon nonpredicate diagnoses, without regard to the expert testimony, that Timothy R. has a congenital or acquired condition, disease, or disorder … . Matter of State of New York v Timothy R., 2018 NY Slip Op 08940, Second Dept 12-26-18

 

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Policy Exclusions Not Affected by Additional Insured Endorsement
ALTHOUGH THE LACK OF STANDING DEFENSE TO A FORECLOSURE ACTION IS WAIVED IF NOT ASSERTED IN THE ANSWER OR A PRE-ANSWER MOTION TO DISMISS, IT MAY BE ADDED TO AN ANSWER AMENDED BY LEAVE OF COURT (SECOND DEPT).
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FAMILY COURT DID NOT ENSURE FATHER’S WAIVER OF HIS RIGHT TO COUNSEL IN THIS CUSTODY MODIFICATION PROCEEDING WAS KNOWING, INTELLIGENT AND VOLUNTARY; NEW HEARING ORDERD (SECOND DEPT).
PLAINTIFF DID NOT DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT IN THIS TRAFFIC ACCIDENT CASE, PLAINTIFF’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN DENIED (SECOND DEPT).
Defendant, In Its Summary Judgment Motion, Properly Addressed Only the Theory of “Tort Liability Arising from Contract” Which Was Alleged in the Pleadings
THE JUDGE SHOULD NOT HAVE DISMISSED THE COMPLAINT SUA SPONTE; ALTHOUGH DEFENDANT WAS NOT SERVED, DEFENDANT’S APPEARANCE PRO SE WAIVED ANY LACK-OF-JURISDICTION ARGUMENT (SECOND DEPT).
VACATING A NOTE OF ISSUE IS NOT THE SAME AS MARKING A CASE OFF PURSUANT TO CPLR 3404; WHEN A NOTE OF ISSUE IS VACATED, THE ACTION REVERTS TO A PRE-NOTE OF ISSUE STATUS AND CAN BE RESTORED TO THE ACTIVE CALENDAR WITHOUT MEETING THE STRINGENT CPLR 3404 REQUIREMENTS (SECOND DEPT).

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