The First Department discussed when a trustee can be denied commissions for misconduct, including misconduct after the commission period (a post-commission-period penalty is rare and none was imposed here): We conclude that courts have the discretion to take into consideration all of a trustee’s misconduct in determining the grant of annual commission, even conduct that […]
The First Department, over a dissent, reversed Supreme Court’s order that petitioner, who had been convicted of two drug offenses (felonies) in the past, be certified as a NYC Department of Education school bus driver. The First Department explained the relevant criteria as follows: Where the applicant seeks employment with the New York City Department […]
The First Department explained what “direct financial loss” means in the context of bonds issued to indemnify a commodities futures broker [MF Global] for loss caused by a wrongful act by an employee: In the bonds, plaintiffs agreed to indemnify MF Global for losses “sustained at any time for . . . any wrongful act […]
In a full-fledged opinion by Justice Mazzarelli (which dealt with many corporation law issues not mentioned here), the First Department determined the complaint alleged sufficient facts to meet the criteria for piercing the corporate veil: To make out a cause of action for liability on the theory of piercing the corporate veil because the corporation […]
In affirming the conviction, the Third Department determined the waiver of appeal (re; the harshness of the sentence) was not valid and defendant’s counsel had not take a position adverse to the defendant with respect to defendant’s pro se motion to withdraw his guilty plea. Although defense counsel responded negatively when the court asked if […]
In affirming Supreme Court’s ruling that plaintiff had failed to establish money given to the defendant (plaintiff’s son) by the plaintiff, originally for the purchase of a lake house, was held by the defendant as a constructive trust, the Third Department explained: Plaintiff failed to establish the necessary elements of a constructive trust, which include […]
In affirming the dismissal of an executor’s motion to be substituted as a party in a negligence action (on behalf of the decedent), the Second Department explained: CPLR 1021 provides, in pertinent part, “[i]f the event requiring substitution occurs before final judgment and substitution is not made within a reasonable time, the action may be […]
The Second Department determined Supreme Court abused its discretion when it denied defendant’s motion for a protective order pursuant to CPLR 3103(a). The plaintiff had sought a notice to admit that a vehicle owned by the defendant and operated by defendant’s employee ‘was in contact with the plaintiff.” The Second Department wrote: “The purpose of […]
The First Department determined that an informal appearance by a “John Doe” party who was not served with the complaint waives any objection to personal jurisdiction. The action stemmed from plaintiff’s decedent’s drowning at Coney Island: CPLR 1024 allows for the commencement of an action against an unknown party…. While the use of a John […]
The Second Department affirmed Supreme Court’s denial of an Article 78 petition seeking prohibition with respect to an order that petitioner allow a buccal swab for DNA testing. The petitioner argued that his offer to stipulate his DNA matched the DNA on two firearms should preclude the test. The Second Department held that a prosecutor […]
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