In a detailed decision going into depth on many of the related issues, the Third Department determined that (1) leases of equipment which the customer has the option to buy at the end of the term and (2) installment sales of equipment in which title is conferred to the customer at the outset, both referred […]
The Third Department affirmed the dismissal of a complaint seeking attorneys fees from the City for the defense of a police officer who allegedly pointed a loaded weapon at a coworker. At one point the City and the defense attorney exchanged letters concerning the lawyer’s fees and the City offered to pay the defense attorney […]
In affirming the grant of father’s petition to relocate with the child, the Third Department explained the criteria: The party seeking to relocate with a child – here, the father – bears the burden of establishing by a preponderance of the credible evidence that the relocation is in the child’s best interests … . Family […]
The Third Department reversed Supreme Court’s finding of neglect against respondent mother for leaving the children with the father unsupervised. The father was a sex offender who failed to complete sex offender treatment and was previously found to have neglected the children by Supreme Court on that and other grounds. In the prior appeal of […]
The Third Department there was a question of fact whether plaintiff assumed the risk of being kicked by defendant’s horse. Plaintiff alleged the risk was heightened by defendant’s actions: While it has been recognized that participants in the sporting activity of horseback riding assume commonly appreciated risks inherent in the activity, such as being kicked […]
The Second Department determined there was a question of fact about whether a hedge which encroached eight feet into plaintiff’s right of way was a “de minimus” encroachment within the meaning of the Real Property Actions and Proceedings Law (RPAPL) (re: adverse possession): RPAPL 543(1), which was enacted in 2008, provides: “Notwithstanding any other provision […]
The Second Department determined a loan transaction and the associated note and mortgage were void because the loan was usurious: Under the civil usury statute, the maximum interest rate on a loan is 16% per annum (see General Obligations Law § 5-501[1]; Banking Law § 14-a[1]). General Obligations Law § 5-501(6)(a) provides that the 16% […]
Over a substantial dissent, the Second Department affirmed Supreme Court’s grant of a dismissal motion on forum non conveniens grounds. Plaintiff’s decedent died of Legionnaire’s disease after staying in defendant’s hotel in Dubai. The only connection with New York was defendant’s global headquarters in White Plains. The plaintiffs were citizens of the UK: The doctrine […]
he Second Department determined partial closure of the courtroom during the testimony of undercover police detectives was proper: …[T]he court providently adopted a reasonable alternative to full closure of the courtroom, excluding the general public and allowing the defendant’s sister and the defendant’s friend to be present during the testimony of the two undercover detectives, […]
The Second Department explained when a witness’ asserting the privilege against self-incrimination constitutes reversible error and noted that the introduction of a photograph of the murder victim when he was alive was (harmless) error: “[A] witness’s invocation of the Fifth Amendment privilege may amount to reversible error in two instances: one, when the prosecution attempts […]
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