The Third Department determined that defendant waived a contractual provision requiring arbitration by participating in the judicial process: …[W]hile defendant asserted the contractual arbitration provision as an affirmative defense in its answer, it did not move to stay the action and compel arbitration (see CPLR 7503 [a]). Instead, it aggressively participated in the discovery process […]
The Third Department affirmed the dismissal of a neglect petition after a hearing where the only evidence was the hearsay testimony of the caseworker based on what the caseworker was told by the mother: “To establish neglect, [a] petitioner must prove by a preponderance of the evidence that a child’s physical, mental or emotional condition […]
The Third Department affirmed Family Court’s determination that the petitioner had not met its burden of proof that respondent had abused a child (Kaelynn). The child did not testify and petitioner relied entirely on the testimony of four people to whom the child had disclosed abuse, and the observations of the child’s demeanor during the […]
The Second Department affirmed the eminent-domain seizure of petitioner’s property (under EDPL article 2) for construction of a firehouse: “The principal purpose of EDPL article 2 is to insure that an agency does not acquire property without having made a reasoned determination that the condemnation will serve a valid public purpose” … . Judicial review […]
The Second Department determined Supreme Court properly vacated an order which directed the school district to repay back taxes for 2006 through 2010 on the ground that the superintendent of schools was not properly served in the tax certiorari proceeding: It is undisputed that the petitioner failed to comply with the requirements of RPTL 708(3) […]
The Second Department determined Supreme Court erred in vacating an arbitration award in a case involving an uninsured motorist endorsement. Petitioner had won a $25,000 (default) civil judgment against the driver, but in the arbitration under the uninsured motorist endorsement, the arbitrator awarded $10,000: The Supreme Court erred in vacating the arbitration award. “[J]udicial review […]
In affirming Supreme Court’s dismissal of a cause of action for breach of fiduciary duty based on one shareholder’s purchase of another shareholder’s stock in a close corporation, the Second Department noted that the status of an officer, director or shareholder of a close corporation does not, without more, create a fiduciary relationship: “The elements […]
In dismissing the People’s appeal, the Second Department explained that there was no statutory right for an appeal of the judge’s vacating defendant’s conviction and sentencing defendant as a youthful offender. The only vehicle for the People was an article 78 prohibition proceeding:” The Criminal Procedure Law expressly enumerates and describes the orders appealable by […]
In finding an “Anders” brief insufficient, the Second Department wrote: The brief submitted by the appellant’s assigned counsel pursuant to Anders v California (386 US 738) is deficient because it fails to adequately recite the underlying facts in the case and analyze potential appellate issues or highlight facts in the record that might arguably support […]
Although the Second Department found the error harmless, the court noted that the trial court improperly curtailed defense counsel’s summation argument concerning the lack of a motive. People v Papas, 2013 NY Slip Op 07065, 2nd Dept 10-30-13
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