In a slip and fall case, the Fourth Department determined the defendant out-of-possession landlord (McDonald’s) had met its burden demonstrating it was not responsible for snow and ice removal: McDonald’s met its initial burden of establishing its entitlement to judgment as a matter of law, and plaintiff failed to raise a triable issue of fact […]
The Fourth Department, in an Article 78 proceeding initiated in the appellate court, annulled the revocation of petitioner’s pistol permit. The permit was suspended temporarily when petitioner was charged with menacing but was revoked after an acquittal: We agree with petitioner that the determination is arbitrary and capricious, and constitutes an abuse of discretion inasmuch […]
The Fourth Department reversed defendant’s conviction based on the trial court’s refusal to allow the defense a peremptory challenge. Defense counsel had mistakenly crossed out the juror’s name and quickly let the court know about the mistake: After several prospective jurors had been excused for cause, the court directed the attorneys to exercise their peremptory […]
In affirming defendant’s conviction, the Fourth Department determined defense counsel’s failure to make a motion for a trial order of dismissal did not amount to ineffective assistance of counsel: …“[D]efense counsel’s failure to make a specific motion for a trial order of dismissal at the close of the People’s case [does] not constitute ineffective assistance […]
In a full-fledged opinion by Justice Richter, the First Department determined the trial court’s jury instruction on the assisted-suicide affirmative defense to murder did not accurately instruct the jury on the elements of the defense and a new trial was required. Apparently there was no question that the decedent wanted to die and that the […]
The First Department determined a vehicle checkpoint stop to control automobile thefts was unconstitutional: The suspicionless vehicle checkpoint stop that led to the recovery of contraband in this case was constitutionally impermissible because the primary purpose of the checkpoint was “essentially to serve the governmental interest in general crime control” … . It is undisputed […]
The Third Department confirmed the comptroller’s determination that the injuries suffered by a police officer were not the result of “accidents” and therefore did not justify the award of accidental disability retirement benefits. The officer slipped on a wet metal-encased curb while directing traffic and was subsequently injured again when a suspect he was chasing […]
The Third Department affirmed the board’s determination that retroactive transfer of liability to the Special Fund to a time within seven years of the underlying injury was proper: Pursuant to Workers’ Compensation Law § 25-a, liability is transferred to the Special Fund “when an application to reopen a closed case is made more than seven […]
Over a two-justice dissent, the First Department determined a lawsuit alleging the negligence of dog owners could go forward. Plaintiff, a bicyclist, was injured when plaintiffs caused their dog to run into plaintiff’s path. After noting a change in the Court of Appeals’ approach to animal-caused injuries that are not the result of vicious propensities, […]
The First Department determined Supreme Court should have permitted plaintiff to voluntarily discontinue the lawsuit: The court erred in declining to permit plaintiff to voluntarily discontinue the action. CPLR 3217(b) authorizes a court to grant a motion for voluntary discontinuance “upon terms and conditions, as the court deems proper.” While the determination upon such an […]
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