In a case involving an assessment by defendant against plaintiff under the Federal Power Act for costs associated with a hydropower plant, dams and reservoirs, the Third Department noted that none of defendant’s arguments on appeal could be addressed because they were not raised below: On appeal, defendant makes none of the arguments raised in […]
The Court of Appeals determined the appellate division was required to assign counsel upon a showing of indigency before ruling on whether defendant’s first-tier appeal as of right should be dismissed for failure to meet the timeliness requirement in the 2nd Department’s rules: In this case, the Appellate Division erroneously failed to assign counsel to […]
In affirming the denial of summary judgment to the defendant driver who struck plaintiff when the defendant turned toward the shoulder to avoid an on-coming car, the Third Department noted that plaintiff’s Chapter 13 bankruptcy did not preclude the suit and there were questions of fact about the applicability of the emergency doctrine: Initially, we […]
In reversing Supreme Court, the Third Department determined the doctrine of res ipsa loquitur sufficiently raised a question of fact about whether a shard of wood, which was swallowed by plaintiff, was negligently present in food prepared by defendant (Cipriani): Res ipsa loquitur is neither a theory of liability nor a presumption of liability, but […]
The Third Department affirmed Supreme Court and determined that a modified Medicaid reimbursement procedure for the school supportive health services program (SSHSP) did not violate the State Administrative Procedure Act because the new administrative directives (referred to as Q & A’s) were not new rules triggering the requirements of the Act: The documentation and reimbursement […]
The Third Department noted that revocation of Empire Zone Program certifications cannot be applied retroactively pursuant to James Sq Assoc LP v Mullen, 21 NY3d 233 [2013]. Matter of Bond, Schoeneck & King PLLC v NY Dept of Economic Development…, 514812, 3rd Dept 10-17-13
The Third Department, in a disciplinary action by SUNY Cortland, determined the alleged victim of harassment was not the complainant in the disciplinary proceeding and therefore the alleged victim need not testify in the proceeding. The court, however, determined the school’s failure to set forth detailed factual findings in its disciplinary determination violated the student’s […]
In finding the resort to contempt for failure to make payments pursuant to a judgment in a matrimonial action was appropriate, the Second Department explained the criteria: Pursuant to Domestic Relations Law § 245, where a spouse fails to make payments of money pursuant to an order or judgment entered in a matrimonial action, the […]
In finding the defendant did not effectively waive his right to appeal, the Second Department explained: …[T]he record does not demonstrate that the defendant knowingly, voluntarily, and intelligently waived his right to appeal … . The defendant’s purported waiver of the right to appeal is unenforceable, as the record does not indicate that he had […]
The Second Department reversed defendant’s convictions on sexual offenses as against the weight of the evidence: The testimony of the prosecution’s witnesses failed to provide a credible foundation for the defendant’s convictions due to numerous inconsistencies and contradictions. * * * …[T]the prosecution’s witnesses testified that the defendant and the mother separated in 2002, and, […]
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