Over a dissent, the Fourth Department determined a shooting accomplished with more than one weapon did not constitute two distinct offenses, but rather constituted a continuing offense, and, therefore, the indictment was not duplicitous: It is well established that, “ ‘[w]here an offense may be committed by doing any one of several things, the indictment […]
The Fourth Department noted the trial court applied the wrong criteria to defendant’s motion pursuant to CPL 440.20 to vacate his consecutive sentences and determined defendant’s sentences must run concurrently. Either the robbery or forgery count could serve as the predicate for the felony assault count and therefore the sentences for the predicate counts must […]
The Fourth Department determined defendant’s references to an attorney did not amount to an unequivocal request for counsel such that questioning should cease: The right to counsel attaches, inter alia, “when a person in custody requests to speak to an attorney or when an attorney who is retained to represent the suspect enters the matter […]
The Fourth Department determined a covenant not to compete was ambiguous with respect to the scope of prohibited activity, unenforceable to the extent it attempted to bind third parties, and the liquidated damages clause in the covenant was an unenforceable penalty: …[T]he liquidated damages clause is an unenforceable penalty. Liquidated damages are enforceable only to […]
The Fourth Department determined a contract which could possibly be performed in a year, even though such performance is unlikely, survives the statute of frauds defense: …[D]efendants contend that Supreme Court erred in determining that an alleged oral agreement between the parties is not void and unenforceable pursuant to the statute of frauds (see General […]
The Fourth Department determined the sheriff was entitled to poundage even though no money was actually collected by the sheriff (the execution by the sheriff triggered a settlement): The Sheriff …. moved for an order awarding the payment of poundage pursuant to CPLR 8012. We conclude that the court erred in denying that motion. “ […]
The Third Department affirmed the determination that a home attendant for the elderly, who was injured walking from one client’s home to another client’s home, was entitled to workers’ compensation: While “injuries sustained during travel to and from the place of employment” are generally not compensable under the Workers’ Compensation Law, an outside employee “who […]
The Third Department affirmed Supreme Court’s determination that newly hired firefighters [hired January 9, 2010] were not eligible, pursuant to a collective bargaining agreement (CBA), for participation in a retirement plan to which they need not contribute a portion of their salary. The collective bargaining agreement which would have allowed participation in the noncontributory program […]
In an action brought pursuant to General Municipal Law section 4 for an order directing a summary investigation into the financial affairs of the respondents (village, fire department and water board), the Third Department determined the respondents could not appeal Supreme Court’s ordering of the investigation. The petitioners alleged the tax, water and sewer moneys […]
In finding that the term “collapse” in a home insurance policy included a four-inch drop in the floors caused by insect damage, the Third Department explained: An insurance policy must be interpreted to give clear and unambiguous provisions their plain and ordinary meaning… . However, “[t]he policy must, of course, be construed in favor of […]
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