The Second Department determined the content of text messages was admissible (i.e., authenticated) because the messages “made no sense” unless sent by the defendant: …[T]he text messages from the defendant to the complainant were properly admitted into evidence. Since the content of the text messages “made no sense unless [they were] sent by defendant” …, […]
The Second Department determined a 911 recording of an anonymous caller was admissible under the excited utterance and present sense impression exceptions to the hearsay rule and the admission of the recording did not violate defendant’s right to confrontation: The recording satisfied the excited utterance exception to the hearsay rule, since it evidenced that the […]
The First Department determined it was error for County Court to have allowed the prosecutor to impeach defendant with his failure to present to the police an exculpatory version of events and to allow the prosecutor to comment upon defendant’s post-arrest silence: County Court erred in allowing the prosecution, over the defendant’s objection, to impeach […]
In determining the motion for summary judgment based upon a guarantee was properly denied because of ambiguity about which obligations were guaranteed, the Second Department explained: A written agreement that is complete, clear, and unambiguous on its face must be enforced so as to give effect to the meaning of its terms and the reasonable […]
In a boundary-line dispute, the Second Department affirmed the dismissal of a counterclaim for a judgment declaring that a hedgerow and chain-link fence running parallel to the recorded boundary line was the legal line under the doctrine of practical location. The Second Department explained the doctrine as follows: Pursuant to the doctrine of practical location, […]
The Second Department determined Surrogate’s Court should have granted decedent’s surviving spouse’s petition for leave to file a late notice of election against the decedent’s estate. The spouse executed a notice of election which was served on the attorney for the executor, but, because of law office failure, was never filed with Surrogate’s Court: EPTL […]
In finding that Family Court did not have enough information to determine whether the termination of father’s visitation was in the child’s best interest, in part because the court did not talk to the child in camera, the Second Department wrote: A court may modify a visitation order upon a showing of changed circumstances and […]
The Second Department reversed Family Court’s neglect determination against father. The sole basis for the neglect finding was father’s refusal to let DSS Emergency Services workers into his apartment, which, the father explained, was based upon his fear the workers were not who they claimed they were: The Second Department wrote: “To establish neglect pursuant […]
In affirming Family Court’s award of sole custody to mother, the Second Department determined the father should have been awarded decision-making authority for the child’s education: When joint custody is not possible because of the antagonistic relationship between the parties…, it may be appropriate, depending upon the particular circumstances of the case, to award some […]
In finding Supreme Court should have dismissed the complaint against a driver (Mabella) who was struck from behind when stopped, due to mechanical trouble, in a moving lane of traffic, the Second Department explained: Mabella established his prima facie entitlement to judgment as a matter of law through his submission of the deposition testimony of […]
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