The Fourth Department determined the resentencing of defendant after appeal to a more severe sentence than was first imposed was vindictive and imposed the original sentence. The court wrote: “In order to ensure that defendants are not being penalized for exercising their right to appeal, ‘a presumption of [institutional] vindictiveness generally arises when defendants who […]
The Fourth Department affirmed the denial of summary judgment to the owners of a horse which allegedly brushed up against a tree, injuring the novice rider. The court explained that the “knowledge of vicious propensities” doctrine applied here because there was evidence the defendants knew the horse had a propensity to ride too close to […]
The Fourth Department reversed Supreme Court’s grant of an Article 78 petition. In granting the petition, Supreme Court found that the relevant provisions of the city code and charter were unconstitutional as applied with respect to searches of petitioner’s property in connection with the issuance of certificates of occupancy. In reversing that determination, the Fourth […]
In remitting the matter to create a more complete record, the Fourth Department explained the criteria for determining whether the county is immune from the requirements of village ordinances prohibiting the use of the village sanitary system for a county jail within the village limits: We agree with the Village that the record is inadequate […]
The Third Department affirmed the decision of the Unemployment Insurance Appeal Board finding that claimant, a math tutor, was an independent contractor, not an employee: Although claimant maintains that he was erroneously considered an independent contractor in connection with earnings received from tutoring services through TestQuest, Inc. and that such funds should be utilized as […]
The College Network (TCN) sells educational materials for personal study from home to obtain college credits through testing. Claimant was retained by TCN to promote and selling the materials. After claimant stopped working for TCN he filed a claim for unemployment insurance. The Unemployment Insurance Appeal Board upheld the decision that claimant was an employee […]
The Third Department determined that, for purposes of assessing unemployment insurance contributions, musicians on tour were employees of, not independent contractors for, Columbia Artists Management, but the workers who loaded and unloaded the equipment used by the musicians were independent contractors, not employees: … [T]here are a number of factors that establish that Columbia retained […]
The Third Department determined County Court had the authority to amend the amount of restitution initially ordered at sentencing. However, the change required giving the defendant the right to withdraw the guilty plea: Notably, “in the normal course of events, the People must ‘advise the court at or before the time of sentencing that the […]
The First Department explained the criteria for determining whether a trustee can be denied an annual commission for misconduct. The court ultimately concluded the commission should not be denied in this case: We conclude that courts have the discretion to take into consideration all of a trustee’s misconduct in determining the grant of annual commission, […]
In reversing Family Court, the Second Department explained the criteria for a suspension of judgment in a permanent neglect proceeding: A dispositional order suspending judgment is a dispositional alternative, upon a finding of permanent neglect, that affords “a brief grace period designed to prepare the parent to be reunited with the child” … . In […]
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