The Second Department held that the trial court’s failure to comply with Criminal Procedure Law 310.10 with respect to responding to a note from the jury concerning accomplice liability required reversal (despite the absence of an objection): A new trial is required due to the trial court’s failure to meaningfully comply with CPL 310.10. During […]
The Second Department noted that it was error for the prosecutor to ask defendant on cross-examination whether testimony which contradicted defendant’s was untrue, and to ask about his silence after he was apprehended. The errors were deemed harmless, however: The defendant correctly contends that the prosecutor improperly asked him on cross-examination whether a prosecution witness’s […]
In finding that the decedent’s brother did not have standing to raise objections to the distribution of an estate because the decedent had sufficiently acknowledged paternity of at least one nonmarital child, the Second Department wrote: …[T]he appellant, in his capacity as a sibling of the decedent, had no standing to raise objections unless he […]
In finding there were triable issues of fact, the Second Department explained the effect of ambiguity in the wording of easements: The extent of an easement claimed under a grant is generally determined by the language used in the grant … . However, where the language of the grant is ambiguous or unclear, the court […]
In affirming the grant of defendant’s motion for summary judgment in a contract action, the Second Department explained the analytical criteria concerning whether extrinsic evidence should be considered: “[W]hen parties set down their agreement in a clear, complete document, their writing should as a rule be enforced according to its terms. Evidence outside the four […]
The Second Department determined Supreme Court correctly granted leave to file a retainer agreement in a medical malpractice action, nunc pro tunc. The attorney (Siegel) was the second attorney retained in the matter (to handle the trial). After the case settled, the second attorney sued the first (Glassman) over the amount of the fee. The […]
In affirming Supreme Court’s granting of plaintiff’s motion to restore a Labor Law action, the Second Department explained that vacating a note of issue does not constitute “marking off” or “striking” from the calendar under CPLR 3404: CPLR 3404 states, in relevant part: “[a] case . . . marked off’ or struck from the calendar […]
he Second Department determined a “lack of standing” defense to a mortgage foreclosure action, although initially waived by its absence from the pleadings, could be added in an amended answer: Leave to amend a pleading “shall be freely given” (CPLR 3025[b]), provided that the amendment is not palpably insufficient as a matter of law, does […]
In upholding Family Court’s determination that petitioner had not demonstrated the child (Sincerity) was abused when the child was in the custody of the mother, in the face of expert testimony the child suffered forceful blunt trauma within 24 hours of death, the Second Department explained: The Family Court Act defines an “[a]bused child,” inter […]
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 […]
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