The Court of Appeals, over a dissent, sustained the State Commission on Judicial Conduct’s finding of misconduct and the determination the non-lawyer town court justice should be removed from office. The essence of the alleged misconduct was that the judge presided over matters involving his friends and relatives without disclosing the relationships. With respect to […]
In a full-fledged opinion by Judge Smith, over a dissent, the Court of Appeals determined the doctrine of collateral estoppel prohibited the introduction of evidence a firearm was displayed in the course of a robbery. In the first trial, the defendant was acquitted of First Degree Robbery (which requires display of a firearm) and convicted […]
The Court of Appeals determined the accusatory instrument charging attempted criminal possession of a controlled substance was sufficient. The police officer observed defendant drop a glass pipe which contained cocaine “residue.” The court noted that “possession of a controlled substance ‘may be proven circumstantially,’ and ‘possession suffices to permit the inference that possessors know what […]
The Court of Appeals, in a full-fledged opinion by Judge Lippman, determined that collateral-estoppel effect should not be given to a finding by the Workers’ Compensation Board in a related negligence action. Plaintiff, a delivery person, had been struck by a piece of plywood which fell from a building under construction in 2003. The Workers’ […]
The Third Department determined Supreme Court had properly annulled a finding by the zoning board of appeals that petitioner was not excepted from business-district, retail-space, zoning requirements. Petitioner contracted to buy property in the business district to be used to provide a WIC nutrition program for low income women and their children, a Head Start […]
The Third Department reversed the appeal board and determined waiters and bartenders placed with clients for catered functions by John Lack Associates, LLC, were not John Lack employees: Whether an employer-employee relationship exists is a factual determination for the Board, and its decision will be upheld if supported by substantial evidence … . “[S]uch a […]
The Third Department determined plaintiff did not raise a question of fact about whether a dog had a propensity to chase bicyclists or run into the path of bicyclists. Therefore, the plaintiff, a bicyclist injured when defendant’s dog (Dudley) ran into plaintiff’s path, did not raise a question of fact about whether defendant was strictly […]
The Third Department determined the defendant tavern was unable to exclude the possibility defendant driver was served alcohol after defendant driver was visibly intoxicated in violation of General Obligations Law 11-101: In order to establish its entitlement to summary judgment, the Tavern was required to present evidence excluding the possibility that it served [defendant driver] […]
In a slip and fall case, the Third Department determined there was a question of fact about whether the snow removal practices of defendant’s contractor created the dangerous icy condition: …[T]here are factual issues posed as to whether defendant’s snow removal procedures created the dangerous condition. Defendant had hired an outside contractor to plow the […]
The Third Department determined claimant was entitled to partial summary judgment on his Labor law 240 (1) action. A cable suspended under a bridge (which held up scaffolding) broke when claimant was walking on the cable to get to the scaffolding. The defendant countered that the workers were instructed to use ladders, not the suspended […]
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