In affirming Family Court’s denial of father’s petition to modify child support, the Second Department explained the doctrine of constructive emancipation, noting that a child’s reluctance to see a parent is not abandonment: The father claimed that he should no longer be required to pay support because the mother had alienated the child from him. […]
The Second Department determined Family Court’s finding that it did not have jurisdiction (over a visitation petition) under the Uniform Child Custody Jurisdiction and Enforcement Act was error. But the Second Department went on to determine that New York was an inconvenient forum for the proceeding: A New York Family Court has jurisdiction to make […]
The Fourth Department affirmed the determination the petitioner (a hospital) was not entitled to a property tax exemption because the use of the property was in violation of a zoning law. After noting that a proceeding pursuant to RPTL article 7, and not an Article 78 proceeding, is the proper vehicle for challenging a tax […]
The homeowners (defendants) refused to pay the builder (plaintiff) the final payment under a custom home building contract because of alleged defects in the home. The homeowners counterclaimed for breach of the housing merchant implied warranty. The Fourth Department determined the written-notice-of-the-defect warranty-requirement was not an express condition precedent and the builder had waived the […]
The Fourth Department determined that Supreme Court should have granted summary judgment on a counterclaim which sought damages for undistributed goodwill of a partnership. The partnership had been dissolved after the death of one of the partners and did not continue under the same structure. The Fourth Department explained: Here, even assuming, arguendo, that the […]
The Fourth Department determined that evidence of a 1991 offense that was dismissed with the record sealed was admissible in a Mental Hygiene Law article 10 “dangerous sex offender” proceeding to determined whether defendant had a mental abnormality: Evidence of prior crimes is commonly admissible in article 10 proceedings because it is probative of whether […]
In determining defendant’s right to confrontation was not violated by latent fingerprint evidence processed by a technician who did not testify, the Fourth Department explained: The technician who processed and photographed the fingerprint did not compare the latent print to the fingerprints of defendant or any other suspect. Thus, the technician’s findings were not testimonial […]
The Fourth Department reversed Supreme Court finding that a hearing should be held on defendant’s motion to vacate his conviction based on newly discovered evidence. The evidence was an affidavit from a person to whom a third person is alleged to have confessed to the murder. The Fourth Department determined the hearsay statement could be […]
The Fourth Department reversed defendant’s conviction for reckless endangerment in the first degree in a shooting case where there was no evidence anyone was near the line of fire: “A person is guilty of reckless endangerment in the first degree when, under circumstances evincing a depraved indifference to human life, he recklessly engages in conduct […]
In affirming the conviction, the Fourth Department held that a statement was correctly admitted as a dying declaration: [The trial court admitted] as a dying declaration exception to the hearsay rule the testimony of a prosecution witness that, after being shot in the inner thigh, the victim stated, “I got robbed” and “I got shot.” […]
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