In a sidewalk slip and fall case, over a substantial dissent, the First Department determined “a three-quarter-inch expansion joint, which was not filled to grade level, coupled with a one-fourth-inch height differential between slabs … was “trivial” and therefore not actionable as a matter of law…”. Although there was evidence the width of the expansion […]
In reversing Supreme Court’s grant of a default judgment, the Fourth Department noted that “New York does not recognize civil conspiracy to commit a tort as an independent cause of action.” Piatt, PA…v Horsley…, 652, 4th Dept 7-19-13
In a case with counterclaims sounding in contract and Labor Law 191-c (1) (re: payment of earned sales commissions after a contract is terminated), the Fourth Department noted that the court does not have discretion to vary the statutory 9% interest rate in a contract action: …[W]e conclude that the court lacked discretion to vary […]
The Fourth Department dismissed a negligence cause of action as time-barred and a contract cause of action because the defendant insurance agent owed no special duty to advise the plaintiff. The plaintiff asked for and received an assignment of a workers’ compensation policy which had been held by nonparty API. Unbeknownst to the plaintiff at […]
In determining a 40-month delay did not deprive defendant his right to due process, the Fourth Department wrote: In determining whether there has been an undue delay, a court must consider several factors, including “ ‘(1) the extent of the delay; (2) the reason for the delay; (3) the nature of the underlying charge; (4) […]
The Fourth Department determined there was insufficient evidence in a SORA proceeding to find defendant had a history of alcohol and drug abuse. The case summary stated that “Probation identified [defendant’s] continued drug and alcohol abuse as problematic, and he refused to attend treatment for th[at] problem.” The Court wrote: There is …no evidence that […]
Defendant was released on parole for a 2001 conviction. While on parole he committed an offense and was jailed. The Fourth Department determined that the time defendant was in jail must first be credited to the 2001 conviction. Only after the 2001 sentence was completely served could any jail time be credited to the subsequent […]
The Fourth Department determined the defendant’s wearing of a “stun belt” during his trial (unbeknownst to the judge and to which no objection was made) did not constitute a mode of proceedings error. The dissent argued to the contrary, characterizing the sheriff’s use of the stun belt without the court’s involvement as a usurpation of […]
The Fourth Department determined a new trial was required where the trial court allowed the prosecution to present evidence (in its direct case) of a pending attempted robbery charge under Molineux to prove identity. The defendant was on trial for allegedly robbing a hotel clerk in Cayuga County and the Molineux evidence involved the attempted […]
In affirming a SORA determination, the Fourth Department noted that the 20 point assessment under risk factor 7 (entitled “Relationship Between Offender and Victim”), based upon the defendant’s pleading guilty to receiving child pornography (a federal statute), was appropriate: With respect to …the 20 points assessed under risk factor 7, we note that the underlying […]
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