The Second Department explained that “[m]ere reference to general cleaning practices, with no evidence regarding any specific cleaning or inspection of the area in question, is insufficient to establish a lack of constructive notice” in opposing a motion for summary judgment in a slip and fall case. Mahoney vs AMC Entertainment, Inc., 2012-00582, Index No. 2258/08, Second Dept. 2-27-13
The Second Department, in a full-fledged opinion by Justice Lott, determined that a local law enacted by Nassau County which purported to repeal portions of state laws concerning property tax violated the New York State Constitution and the Municipal Home Rule Law. Matter of Baldwin Union Free Sch. Dist. v County of Nassau, 2013 NY Slip Op 01265 [105 AD3d 113], Second Dept 2-27-13
The Second Department, in a full-fledged opinion by Justice Angiolillo, determined that where the state owns a navigable lake and the submerged land below the water, the state has the exclusive authority to regulate construction on the submerged land, absent delegation of that authority to the municipality. Town of Carmel v Melchner, 2013 NY Slip Op 01259 [105 AD3d 82], Second Dept 2-27-13
The “primary assumption of risk” doctrine precluded a student baseball player’s lawsuit against his school where the student was struck in the face by a baseball “that had been hit on the ground with a fungo bat.” O’Connor vs Hewlett-Woodmere Union Free School District, 2-12-04146, Index No. 021556/09, Second Dept. 2-27-13
The prosecution moved for a mistrial based on defense counsel’s improper questioning of a witness in defiance of the court’s instructions. The court granted the mistrial. The First Department, in a full-fledged opinion by Justice Freedman, determined that the defendant could not be retried. “When the court declares a mistrial on the prosecution’s motion and over the defendant’s objection, a retrial is precluded unless ‘there is a manifest necessity for [the mistrial], or the ends of public justice would otherwise be defeated’ …” The First Department felt that defense counsel’s conduct, while blameworthy, could have been adequate addressed by alternative measures and, therefore, there was not a sufficient basis in the record for a mistrial. Matter of Morris vs. Livote, 4334/10, 9012-5107, First Dept. 2-21-13
double jeopardy
In this case, the Third Department included a clear description of the proof requirements for tortious interference with contract. Schmidt & Schmidt vs. Town of Charlton, 515053 Third Dept. 2-21-13
No appeal as of right lies from an order for an in camera inspection of documents (to address a discovery request) where the inspection had not yet been conducted. “Inasmuch as the order does not affect a substantial right of plaintiff, no appeal as of right lies therefrom…”. In addition, the Third Department determined that the facts alleged would not support an application for permission to appeal. Soloman vs Meyer. 515208 Third Dept. 2-21-13
In this case, the Second Department clearly laid out the acceptable sources of information, the applicable standards of proof, and the criteria for departure from the presumptive level in a SORA hearing. People vs Lacewell, 2008-07498, Second Dept. 2-20-13
“The Supreme Court properly permitted the People to impeach the testimony of a defense witness with a statement made by that witness’s former counsel at a plea proceeding… .The statement, which differed from the witness’s trial testimony, reasonably appeared to be attributable to the witness … “. People vs Davis, 2010-11219, Ind. No. 921/09 Second Dept. 2-20-13
A police officer approached defendant who was in a parked car. The officer smelled a “strong odor of unburnt marijuana coming from the defendant’s vehicle’s open window.” The officer asked if the occupants of the vehicle had “anything illegal.” The defendant produced a small bag of marijuana. The officer then told the defendant to get out of the vehicle “as he was now under arrest for unlawful possession of marijuana.” The officer searched the vehicle and found two bags of marijuana under the driver’s seat. When he asked the defendant if the bags of marijuana were his, he said “yes.” A gun was also recovered in the search. The defendant was taken to the police station where he was read his Miranda rights for the first time and he declined to speak with the detective. Two hours later the arresting officer told the defendant that if no one confessed to owning the gun, everyone in the vehicle would be “equally charged.” The defendant then asked to speak to the detective. He was read his Miranda rights again and confessed to owning the gun. The Second Department suppressed the marijuana and the gun—the marijuana because the defendant was in custody and had not been read his rights at the time he was asked about it—and the gun because defendant had initially refused to speak with the police thereby asserting his right to remain silent. Subsequent questioning was not proper. People vs. Jackson, 2011-05745, Ind. No. 10-00130 Second Dept. 2-20-13
DeBour, street stops
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