In reversing the defendant’s robbery conviction as against the weight of the evidence, the Second Department determined the fact that defendant’s hand was in his pocket did not support the “threat to use immediate physical force” element of the offense: This Court has held that where an unarmed person “positions his hand in his pocket […]
The Second Department noted that while an offender’s response to treatment can be a mitigating factor supporting a downward departure in a SORA proceeding, there was insufficient evidence of an exceptional response to treatment in this case: A downward departure from a sex offender’s presumptive risk level generally is only warranted where there exists a […]
The Second Department determined a substitution of a candidate for the county legislature, based on the failure of the initial candidate (Roth) to meet residency requirements, was invalid because the substitution was made by the Committee to Fill Vacancies and not pursuant to Election Law 6-148(3): The vacancy at issue here was created at the […]
The Second Department determined that a charter provision requiring nonincumbents (here, Shapiro) to reside in the legislative district at the time of their nomination for the county legislature does not violate the equal protection clause: Shapiro contends that the residency requirement for nominees as set forth in the Charter is unconstitutional and, thus, he should […]
The Second Department determined the Board of County Legislators was a necessary party in an action concerning the legality of a local law enacted by the Board: A challenge to the procedures by which local legislation is enacted should be raised in a CPLR article 78 proceeding against the body which enacted it … . […]
The Second Department affirmed Supreme Court’s denial of a motion for summary judgment because it was the second such motion and, although it included new deposition testimony, it did not include evidence that met the definition of “newly discovered:” “Generally, successive motions for summary judgment should not be entertained, absent a showing of newly discovered […]
In a full-fledged opinion by Justice Sgroi, over two dissenters, the Second Department determined that an ad on the Internet by a Florida medical group (LSI) and the group’s website, together with communications between the New York plaintiff and the Florida group, were insufficient to provide New York with long-arm jurisdiction over a medical malpractice […]
In finding a police officer had stated a cause of action against the City pursuant to General Municipal Law 205-e based on an injury caused by debris in an empty lot owned by the City, the Second Department determined that a violation of the NYC Health Code section requiring lots be kept free of debris […]
The Second Department ruled that summary judgment should have been granted to a fraternity (SPFI) in an action brought pursuant the General Obligations Law 11-100 (creating a cause of action against those who provide alcohol to persons who subsequently cause injury). Plaintiff was injured in a fight that took place outside the fraternity house and […]
In affirming the denial of a petition for leave to file a late notice of claim, the Second Department noted that the infancy of the injured person did not compel the granting of the petition: …[T]he factor of infancy alone does not compel the granting of a petition for leave to serve a late notice […]
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