Over a dissent, the First Department reversed Family Court’s juvenile delinquency disposition which was based on the findings that, had the juvenile been an adult, he would have been guilty of two counts of sexual abuse 2nd and two counts of forcible touching 3rd. The First Department eliminated the 12-month period of probation and granted […]
In a full-fledged opinion by Justice Feinman, the First Department determined that Israeli law should be applied in a civil action by 50 Israeli citizens who were injured or who represent persons killed in bombings and rocket attacks carried out in Israel by Palestine Islamic Jihad and Hamas. The opinion includes very detailed explanations of […]
The Second Department affirmed Supreme Court’s reinstatement of a charge against a teacher (Hogan) which had been dismissed by the arbitrator. The Second Department explained the criteria for court review of an interlocutory ruling of an arbitrator, noting that more scrutiny is appropriate in an arbitration mandated by statute: Initially, we reject Hogan’s contention that […]
In reversing Family Court’s determination the child should move to the home of her maternal uncle rather than remain with her foster parents for adoption, the Second Department wrote: Once parental rights have been terminated, there is no presumption favoring the child’s biological family … . Moreover, while the law expresses a preference for keeping […]
In reversing Family Court’s grant of custody to maternal grandparents, the Second Department wrote: “In a custody proceeding between a parent and a nonparent, the parent has the superior right to custody that cannot be denied unless the nonparent establishes that the parent has relinquished that right due to surrender, abandonment, persisting neglect, unfitness, or […]
The Second Department determined Supreme Court abused its discretion by awarding maintenance in the absence of evidence of the parties’ standard of living and the plaintiff’s need for maintenance: …[T]he Supreme Court’s award of maintenance to the plaintiff was an improvident exercise of its discretion since the award was made in the absence of any […]
The Second Department reversed Supreme Court’s grant of a mistrial in a slip and fall case. Plaintiff was injured playing basketball. Plaintiff objected to remarks made by defense counsel in summation which erroneously implied that the doctrine of primary assumption of risk applied. The trial judge sustained the objection, admonished the lawyer, and gave a […]
The Second Department determined Supreme Court had properly dismissed the complaint in a medical malpractice action because the plaintiffs refused to identify the mohel who had performed the circumcision of infant plaintiff. In finding dismissal of the entire complaint an appropriate sanction, the court wrote: “The Supreme Court has broad discretion in making determinations concerning […]
The Second Department reversed defendant’s conviction for obstructing governmental administration as against the weight of the evidence. The court determined there was not sufficient proof the police were engaged in authorized conduct at the time of the contact with the defendant: “A person is guilty of obstructing governmental administration when he [or she] intentionally . […]
he Second Department affirmed Supreme Court’s refusal to depart downward in a SORA proceeding, even though the fact that defendant had not been convicted of any sex offenses in the 12 years following his release from prison was a mitigating factor not taken into account by the risk assessment guidelines: … [T]he defendant requested that […]
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