In determining defendant’s motion to withdraw his plea (which had been based in part upon the disposition of another indictment subsequently dismissed) should have been granted, the Second Department wrote: Defendant pleaded guilty as part of a joint disposition of this case and another case, upon which he would be receiving a concurrent sentence of […]
The Third Department noted that County Court had jurisdiction to correct defendant’s 1999 sentence, which did not include post-release supervision: Defendant’s contention that County Court lacked jurisdiction due to an alleged unreasonable delay in correcting the sentence is without merit. A delay in resentencing pursuant to Correction Law § 601-d is “not jurisdictional in nature […]
The Third Department vacated defendant’s sentence because the victim’s mother was allowed to speak at sentencing. Defendant was convicted only of possession of a weapon and not the killing of the victim. The Third Department also noted that the failure to inform the defendant of pending charges against three prosecution witnesses was not a Rosario […]
The First Department determined plaintiff had not stated a cause of action for fraud. The fraud cause of action was based upon defendant’s alleged misrepresentation that it had procured insurance to protect plaintiff against default by the largest subcontractor on the construction project. It was not disputed that no such insurance was procured: …[P]laintiff’s fraud […]
After mother had been found to have neglected her child, the Third Department, over a two-justice dissent, affirmed the grant of custody to grandmother, as opposed to father: “It is fundamental that a biological parent has a claim of custody of his or her child, superior to that of all others, in the absence of […]
In reversing Supreme Court’s dismissal of a slip and fall complaint which was founded on plaintiff’s signing a release, the First Department determined plaintiff had sufficiently alleged the release was procured by fraud: Under the particular facts of this case, dismissal of the causes of action against the owners at the pleading stage was premature […]
In a breach of (purchase) contract action, the Second Department explained that a conversion cause of action could not be based upon the down payment in seller’s possession, and an unjust enrichment cause of action could not be based on the same facts as the breach of contract cause of action: The Supreme Court properly […]
In a full-fledged opinion by Justice Manzanet-Daniels, the First Department reinstated a cause of action for legal malpractice in an immigration case. The complaint alleged a law firm followed an unreasonable course of action in pursuing plaintiff’s application for adjustment of immigration status which led to her removal: Given plaintiff’s allegations that she had no […]
The Second Department determined Supreme Court erred when it did not charge the jury with Labor Law 240(1) as it applies to falling objects. The plaintiff was injured when removing a mirror from the ceiling of a shower stall: …[T]he trial court erred in failing to charge the jury in connection with Labor Law § […]
In affirming the dismissal of Labor Law causes of action against a defendant who was not an owner, contractor or statutory agent, and who did not supervise or control work performance, the Second Department explained the relevant principles: Labor Law §§ 240(1) and 241(6) apply to owners, contractors, and their agents (see Labor Law §§ […]
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