The Fourth Department reversed defendant’s conviction finding the trial court committed a mode of proceedings error in responding to a jury note. The judge instructed the jury in the jury room outside the presence of the defendant. In addition, the Fourth Department found fault with the procedure used by the trial court to address the […]
In affirming Supreme Court’s dismissal of an Article 75 petition seeking a permanent stay of arbitration (with respect to a collective bargaining agreement [CBA]), the Fourth Department explained the operative analysis: In determining whether an issue is subject to arbitration under a collective bargaining agreement (CBA), a court must apply the two-step analysis set forth […]
In a partition action, the Fourth Department determined the agreement between the parties was a right of first refusal, not an option to purchase, which was not triggered by the partition action. The court explained the operative law: Plaintiff and Waite [one of the defendants] are tenants in common and acquired the property at issue […]
The Fourth Department reversed Supreme Court and determined that a 201/2011 statutory moratorium on Medicaid reimbursement rate appeals filed by nursing homes applied retroactively to all appeals filed before April, 2015: We agree with respondents that section 2808 (17) (b) and (c) [Public Health Law] apply retroactively to petitioners’ rate appeals. The seminal case on […]
[Reversed by the Court of Appeals] Over a two-justice dissent, the Fourth Department affirmed the dismissal of a defamation action at the pre-answer stage, finding that the statements attributed to the defendant in the complaint constituted opinion, not fact. The defendant (coach of the Syracuse University basketball team) characterized allegations made by plaintiff (accusing defendant’s […]
The Fourth Department affirmed Supreme Court’s vacation of a separation agreement finding insufficient evidence the agreement was signed under duress but determining the terms of the agreement were unconscionable: “ ‘Judicial review [of separation agreements] is to be exercised circumspectly, sparingly and with a persisting view to the encouragement of parties settling their own differences in connection […]
In affirming the dismissal of a malpractice complaint against a pharmacy (Rite Aid) for failure to state a cause of action, the Fourth Department explained the standard of care imposed upon a pharmacy and the necessary contents of an expert affidavit alleging the profession has established a different standard of care: With respect to the […]
The Fourth Department reversed Supreme Court and determined plaintiffs had raised a question of fact about whether the defendant village was negligent in maintaining the sewer system resulting in sewage leaking into plaintiffs’ basement: We conclude that issues of fact exist whether defendant “received ‘notice of a dangerous condition or ha[d] reason to believe that […]
In a lead-paint-exposure case the Fourth Department reversed Supreme Court’s ruling that defendants were not entitled to full disclosure of records based on the physician-patient privilege. The Fourth Department determined the privilege had been waived: In view of the injuries alleged by plaintiff, we conclude that she waived her physician-patient privilege and any related privileges […]
In affirming summary judgment to defendants (abutting landowners) in a sidewalk slip and fall case, the Fourth Department explained: “Generally, liability for injuries sustained as a result of negligent maintenance of or the existence of dangerous and defective conditions [on a] public sidewalk[] is placed on the municipality and not the abutting landowner” … . […]
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