In affirming Supreme Court’s determination that a stipulation/postnuptial agreement, which was not signed in open court, was not invalidated by Domestic Relations Law 236, the Second Department explained: …[T]he Supreme Court properly determined that the postnuptial agreement was valid and that Domestic Relations Law § 236(B)(3) does not compel a different result. “An agreement by […]
The First Department, over a dissent, reversed Supreme Court’s dismissal of an Article 78 petition for administrative review of the denial of petitioner’s rent overcharge complaint by the NYS Division of Housing and Community Renewal (DHCR). Petitioner’s rent was increased from $572 to $1750 a month. To justify that adjustment, the landlord was required to […]
The Third Department determined there was a question of fact whether an implied easement existed for a pipeline linking defendant’s property with a pond. The court agreed with Supreme Court that an express easement had been extinguished when the relevant parcels were owned by the same party and was not subsequently recreated de novo. The […]
The Third Department determined the inmate’s Freedom of Information Law (FOIL) request for a Department of Corrections directive should have been granted: …”[T]here is a presumption that government documents are available for inspection, and the burden rests on the agency resisting disclosure to demonstrate that they are exempt under Public Officers Law § 87 (2) […]
The Third Department, in determining that a new hearing, not expungement, was the appropriate remedy, explained the ramifications of a hearing officer’s refusal of an inmate’s request to call witnesses: “[W]hile ‘[a] hearing officer’s actual outright denial of a witness without a stated good-faith reason, or lack of any effort to obtain a requested witness’s […]
Supreme Court granted a writ of prohibition finding the state police did not have the legal authority to seize cigarettes purchased by a Nebraska Indian tribe from a manufacturer located on the St. Regis Mohawk Indian Reservation in St. Lawrence County. The cigarettes did not have state tax stamps. The Third Department reversed describing the […]
The Third Department determined defendant’s invocation of his right to counsel when he was not in custody (on September 4, 2004) could be withdrawn without an attorney present and did not, therefore, require the suppression of subsequent statements made three weeks later: The right to counsel indelibly attaches in two limited situations – where formal […]
The First Department determined the loss of teeth (in an assault) was a “serious injury” within the meaning of Penal Law 10.00 (10) because the loss of teeth constituted a “serious and protracted disfigurement” notwithstanding replacement by a prostheses: The element of serious physical injury (Penal Law § 10.00[10]) was established, because the victim’s permanent […]
In finding that music teachers were employees [of Musika, LLC], not independent contractors, the Third Department wrote: Claimant offered guitar lessons for Musika LLC, a business that matches music teachers it deems qualified with students. Musika required its teachers to execute a contract that set the fee for lessons, prohibited them from competing with Musika […]
In dismissing the action against defendant homeowner, the Third Department determined the homeowner’s exemption applied, the homeowner did not direct or supervise plaintiff’s work, and the homeowner could not be characterized as a general contractor: Although Labor Law §§ 240 (1) and 241 each “impose nondelegable duties upon contractors, owners and their agents to comply […]
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