In a medical malpractice case, the Second Department determined plaintiff was deprived of a fair trial by the trial judge’s excessive intervention and improper conduct: “[A]ll litigants, regardless of the merits of their case, are entitled to a fair trial” . A trial justice plays a “vital role in clarifying confusing testimony and facilitating the […]
Over a partial dissent, the Second Department granted defendant a new trial before a different justice in a medical malpractice case based upon the trial judge’s erroneous exclusion of evidence, excessive intervention in the trial, and an erroneous (“Noseworthy”) jury instruction. With respect to the judicial intervention, the Second Department wrote: The defendant was … […]
In a contract dispute, the Second Department determined Supreme Court should not have dismissed the defendant-Everfoam’s affirmative defense alleging plaintiffs failed to mitigate damages, noting that the duty to mitigate arises from the common law and need not be expressly bargained for in the contract: …[T]he Supreme Court erred in awarding summary judgment dismissing Everfoam’s […]
In determining the defendant was entitled to a new trial because of the ineffectiveness of his trial counsel, the Second Department explained the difference between the federal and state criteria for ineffective assistance. Supreme Court had vacated defendant’s murder conviction (ineffective assistance) but allowed the conviction for criminal possession of a weapon to stand. The […]
In rejecting an “Anders” brief, the Second Department noted: The brief submitted by the appellant’s counsel pursuant to Anders v California (386 US 738) was deficient. The body of the brief—which was only 1½ pages in length—did not contain a statement of facts, and did not contain any case citations. The brief failed to analyze […]
In a full-fledged opinion by Justice Saxe, the First Department reversed Family Court and granted the mother’s petition for relocation with the couple’s child to Mississippi. The mother’s inability to find sufficient work in New York, after several years of effort, coupled with job offers in Mississippi and the support of grandparents in Mississippi, were […]
Over a dissent, the First Department determined the defendant in a slip and fall case failed to raise a question of fact re: its claim it did not have notice of the icy condition on the sidewalk. The court explained that the defendant failed to offer sufficient evidence of the condition of the sidewalk before […]
The First Department granted a writ of prohibition barring a retrial of the defendant because the judge ordered a mistrial without the consent of the defendant based upon a comment made by defense counsel in summation. The First Department determined the comment was not sufficiently prejudicial to justify the mistrial: Jeopardy attaches once a jury […]
The First Department affirmed the conviction of a Canadian attorney (not admitted in New York) whose New York law firm, which employed members of the New York bar, represented clients in immigration matters. The complainants were former clients who testified they retained the defendant’s law firm based upon their belief defendant was licensed to practice […]
The Fourth Department affirmed the Court of Claims’ dismissal of an action for failure to comply with the statutory service-of-claim-by-certified-mail requirement. The court noted that the court never gained subject matter jurisdiction and, therefore, the CPLR 3211 (e) waiver provision, which addressed personal, not subject matter, jurisdiction, did not apply: …[C]laimants served their claim on […]
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