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THE JUDGE SHOULD NOT HAVE DISMISSED DEFENDANTS’ AFFIRMATIVE DEFENSES BECAUSE PLAINTIFF DID NOT REQUEST THAT RELIEF (SECOND DEPT).

The Second Department noted that the judge should not have ordered relief not requested by the plaintiff:

… [T]he Supreme Court erred by, in effect, sua sponte, directing dismissal of all of [defendants’] affirmative defenses to the complaint … . The plaintiff did not move for summary judgment dismissing any of [defendant’s] affirmative defenses, and the court erred in awarding this unrequested relief … .  MacKay v Paliotta, 2021 NY Slip Op 04348, Second Dept 7-15-21

 

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THE POLICE OFFICERS DID NOT HAVE AN OBJECTIVE, CREDIBLE REASON TO APPROACH DEFENDANT AND REQUEST INFORMATION; THE MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED (SECOND DEPT).
IN THIS RESENTENCING PROCEEDING, THE JUDGE SHOULD HAVE CONSIDERED DEFENDANT’S CONDUCT SINCE THE ORIGINAL SENTENCE WAS IMPOSED IN 1998-99 AND SHOULD HAVE ORDERED AN UPDATED PRESENTENCE REPORT WHICH INCLUDED AN INTERVIEW WITH DEFENDANT (SECOND DEPT).
THE BIOLOGICAL FATHER’S CONSENT TO THE ADOPTION OF HIS CHILD WAS NOT REQUIRED BECAUSE HE FAILED TO SUPPORT THE CHILD DESPITE THE MEANS TO DO SO (SECOND DEPT). ​
There Was a Rational Bases for Fire District Board of Commissioners’ Rejection of Petitioner’s Bid to Supply a Radio Dispatch System—Court Cannot Substitute Its Own Judgment for the Board’s
QUESTIONS OF FACT RAISED ABOUT CAUSE OF FALL AND CONSTRUCTIVE NOTICE OF CONDITION.
IN A TRAFFIC ACCIDENT CASE A PLAINTIFF’S COMPARATIVE NEGLIGENCE CAN ONLY BE CONSIDERED ON A SUMMARY JUDGMENT MOTION IF THE PLAINTIFF MOVES TO DISMISS THE DEFENDANT’S COMPARATIVE-NEGLIGENCE AFFIRMATIVE DEFENSE (SECOND DEPT). ​
THE POLICE ACTED ILLEGALLY IN DIRECTING DEFENDANT TO GET OUT OF HIS VEHICLE; HOWEVER THE DEFENDANT’S SUBSEQUENT INDEPENDENT ACT OF RUNNING OVER THE POLICE OFFICER DISSIPATED THE ILLEGALITY OF THE POLICE CONDUCT; THEREFORE DEFENDANT’S MOTION TO SUPPRESS CERTAIN TESTIMONY ABOUT THE ENCOUNTER WITH THE POLICE WAS PROPERLY DENIED (SECOND DEPT).
SEX OFFENDER’S PETITION TO TERMINATE STRICT AND INTENSIVE SUPERVISION AND TREATMENT SHOULD HAVE BEEN GRANTED.

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