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DEFENDANT’S SPEEDY TRIAL MOTION SHOULD HAVE BEEN GRANTED; THE CASE COULD BE PRESENTED WITHOUT THE COMPLAINANT, WHO HAD NO MEMORY OF THE INCIDENT; DEFENSE COUNSEL WAS NOT UNAVAILABLE WITHIN THE MEANING OF THE STATUTE BECAUSE A COLLEAGUE WAS IN COURT REPRESENTING DEFENDANT (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant’s speedy trial motion should have been granted. The court noted the issue is the prosecution’s readiness for trial, not whether defense counsel is available:

The court erred, firstly, in excluding 93 days of pre-readiness delay in which the prosecution failed to present its case to the grand jury. “[T]he obligation to obtain a proper accusatory instrument is the prosecutor’s alone” … , making “the period prior to the People’s obtaining an indictment [] chargeable to them, absent the applicability of some exclusion” … . …

… [T]he prosecutor did not and could not establish its inability to proceed with the case since the complainant was not necessary to present its case to the grand jury. The charges against defendant were for leaving the scene of the accident without reporting it. The complainant remembered nothing of the accident, let alone defendant’s actions in its aftermath, professing to this lack of memory on the very day of the accident. …

The court also erred in excluding 83 days of post-readiness delay that was due to the prosecutor’s improper declaration that its readiness was “moot” because lead defense counsel was on trial. While acknowledging that a colleague of defense counsel was present, the court nonetheless erroneously concluded that “the People’s state of readiness is irrelevant where counsel is unavailable,” misconstruing the law as to what constitutes “unavailability.” …

Because a colleague of defense counsel stood up on the case on July 8, 2015, as the court itself acknowledged, defendant was not without representation on the basis that “counsel was unavailable.” People v Alvarez, 2021 NY Slip Op 03286, First Dept 5-25-21

 

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THE LETTER OF INTENT WAS AN AGREEMENT TO AGREE WHICH CONTEMPLATED ONLY OUT-OF-POCKET DAMAGES FOR A BREACH; THE JUDGE SHOULD NOT HAVE RELIED ON CREDIBILITY DETERMINATIONS TO, SUA SPONTE, AWARD SUMMARY JUDGMENT TO PLAINTIFFS (FIRST DEPT).
QUESTION OF FACT WHETHER DEFENDANT EXERCISED SUFFICIENT CONTROL OVER THE WORK TO BE LIABLE UNDER LABOR LAW 200 AS AN AGENT OF THE OWNER AND GENERAL CONTRACTOR.
Failure to Wear Hard Hat Does Not Preclude 240(1) Claim
THE PROCEEDS OF THE SALE OF COLLATERAL TO THE MAJORITY LENDERS WERE NOT DISTRIBUTED TO THE MINORITY LENDERS IN THE MANNER REQUIRED BY THE CREDIT AND SECURITY AGREEMENTS IN THIS PRIVATE FORECLOSURE; THE MINORITY LENDERS’ BREACH OF CONTRACT CAUSES OF ACTION SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT).
THERE WAS NO PROOF THE NOTICE REQUIRED BY RPAPL 1304 WAS MAILED TO THE PROPER ADDRESS (FIRST DEPT).
PLAINTIFF WAS UNABLE TO RAISE A QUESTION OF FACT WHETHER THE RAMP FROM WHICH HE FELL WAS NEGLIGENTLY DESIGNED OR MAINTAINED, NO APPLICABLE BUILDING OR SAFETY CODES (FIRST DEPT).
RESPONDENT, THE PREVAILING PARTY IN AN ARBITRATION, WAS ENTITLED TO ATTORNEY’S FEES FOR THE SUBSEQUENT ARTICLE 75 PROCEEDING TO VACATE THE AWARD AND FOR THE APPEAL TO THE APPELLATE DIVISION (FIRST DEPT).

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