The Fourth Department affirmed Surrogate’s Court’s determination that the decedent was not subjected to undue influence in making a will. The Court explained the legal principles at work as follows: It is well settled that a will contestant seeking to prove undue influence must show the “exercise [of] a moral coercion, which restrained independent action […]
In affirming Family Court’s denial of grandmother’s (the child’s primary physical custodian’s) petition to suspend the child’s visitation with mother, who is incarcerated, the Fourth Department wrote: Even assuming, arguendo, that the grandmother established “ ‘a change in circumstances sufficient to warrant an inquiry into whether the best interests of the [child] warranted a change […]
In affirming the result in an Article 78/declaratory judgment proceeding which unsuccessfully challenged the Department of Environmental Conservation’s finding that petitioner had violated statutory and regulatory provisions relating to the application of pesticide, the Fourth Department explained the principles underlying a declaratory judgment action and the doctrine of ripeness: Petitioners sought a declaration of the […]
Over a dissent by two justices, the Fourth Department ruled a question of fact had been raised which precluded summary judgment to a defendant in a rear-end collision case: Although defendant met his initial burden of establishing a prima facie case of negligence on the part of plaintiff inasmuch as it is undisputed that plaintiff’s […]
In a lead-paint injury case, the Fourth Department determined medical records regarding psychological injury stemming from a sexual assault were discoverable because the plaintiff alleged psychological injury associated with exposure to lead paint. The Court ordered an in camera inspection of the records to weed out irrelevant information. Dominique D. v Koerntgen…, 512, 4th Dept, 6-7-13 […]
In remitting the matter for further fact-finding, the Third Department explained the criteria for recovery from the Special Fund for Reopened Cases: Workers’ Compensation Law § 25-a provides for the transfer of liability to the Special Fund “when an application to reopen a closed case is made more than seven years from the date of […]
The Third Department upheld the determination of the Department of Health’s Office of Inspector General which disallowed certain operating costs of petitioner (a residential health care facility) used to compute Medicaid reimbursement rates. Matter of Odd Fellow & Rebekah Rehabilitation and Health Care Center, Inc v Commissioner of Health…, 515687, 3rd Dept, 6-6-13
In attempting to intubate an 83-year-old woman who was unresponsive, a doctor perforated her esophagus making it necessary that she be fed through a tube for the remaining three years of her life. In affirming the plaintiffs’ verdict, the Court of Appeals determined that the trial court’s jury charge did not improperly reduce plaintiffs’ burden […]
The Court of Appeals, in a full-fledged opinion by Judge Piggot, held that the so-called HAIL Act, which regulates taxi cabs and livery vehicles in New York City, was not an unconstitutional special law in violation of the Home Rule Clause of the New York State Constitution because the statute benefits all New Yorkers, not […]
The Court of Appeals, in a full-fledged opinion by Judge Read, determined that the Wicks Law, as amended, did not violate the Home Rule section of the State Constitution. The Wicks Law “requires public entities seeking bids on construction contracts to obtain ‘separate specification’ for three ‘subdivisions of the work to be performed’—generally, plumbing, electrical […]
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