The Fourth Department explained the law with respect to dismissal based on the “improper service” affirmative defense, and the pleading requirements for an “account stated:” Because defendants failed to move to dismiss the complaint against them on that ground within 60 days after serving their respective answers, which set forth objections to service (see CPLR […]
The Fourth Department noted that the prosecutor’s characterization of the trial as “a search for the truth” was improper (but did not warrant reversal). People v Ward, 758, 4th Dept, 6-14-13
The Fourth Department determined the statute of limitations was tolled until defendant was identified through DNA collected in an unrelated conviction. In addition, the Fourth Department determined the police had “tacit consent” to enter defendant’s apartment: Here, “[t]he record supports the court’s determination that the identity of defendant as the sexual assailant, and thus his […]
The Fourth Department reversed defendant’s conviction because the plea colloquy cast doubt on whether the defendant had the requisite “depraved indifference” state of mind: Defendant’s contention that his plea was not knowing and voluntary survives his waiver of the right to appeal … . Preservation of the contention is not required inasmuch as defendant correctly […]
The Fourth Department reversed the defendant’s conviction (by guilty plea) because the superior court information (SCI) was jurisdictionally defective. The SCI and the felony complaint named different victims: We note that defendant’s contention that the SCI is jurisdictionally defective does not require preservation, and that contention survives defendant’s valid waiver of the right to appeal….“[T]he […]
The Fourth Department determined County Court properly denied a motion to suppress a statement, finding that the statement was not tainted by an unwarned statement made an hour earlier. In addition, over a two-justice dissent, the Fourth Department held that the failure to explain the five-year post release supervision (PRS) portion of the sentence when […]
The Fourth Department noted that failure to request a limiting instruction with respect to Molineux evidence and the failure to object to the court’s failure to provide a limiting instruction rendered the issue unpreserved for appeal. The Molineux evidence in this sexual abuse case was evidence of the physical (not sexual) abuse of the victim’s […]
In determining a dispute involving a lease must be resolved in arbitration, the Fourth Department explained the court’s limited role in this context: Plaintiff …. commenced this action pursuant to RPAPL article 15 seeking, inter alia, “to compel the determination of claims to the real property described herein,” and defendant moved to compel arbitration under […]
The Fourth Department annulled a determination which suspended a tenured teacher for 30 days without pay finding she was wrongly denied a hearing: [Under the collective bargaining agreement (CBA)] petitioner was entitled to choose whether to be disciplined under the procedures set forth in the CBA or those set forth in section [Education Law] 3020-a, […]
The Fourth Department, over a two-justice dissent, determined there was a question of fact concerning whether plaintiff’s actions were the sole proximate cause of his fall. Plaintiff was using stilts to do ceiling work and slipped on ice: …[W]e conclude that there is a triable issue of fact whether plaintiff’s actions were the sole proximate […]
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