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Witness’ Offering Testimony About a “Jailhouse Confession” in Unrelated Case May Constitute Brady Material

In affirming the defendant’s conviction, the Third Department determined a witness’ [Henry’s] agreement to testify about a “jailhouse confession” in an unrelated case may have constituted Brady material in defendant’s case because she also entered an agreement to testify about defendant’s “jailhouse confession.”  The Court determined reversal was not required because the potential Brady error […]

Carrier’s Video Surveillance of Employee Disallowed Because It Was Not Disclosed

The Third Department affirmed the Workers’ Compensation Board’s determination that video surveillance of the employee was properly excluded from the hearing because the existence of the surveillance by the carrier had not been previously disclosed: It is well established that an employer or carrier must disclose the existence of surveillance and investigation materials to a […]

Employee’s Submission of Amended Time Card Did Not Constitute Misconduct

In affirming the Unemployment Insurance Appeal Board’s finding the employee did not commit “misconduct” which justified the denial of benefits, the Third Department wrote: “Whether a claimant lost his or her employment through disqualifying  misconduct  presents  a  factual  issue  for the  Board, and  its resolution thereof will not  be  disturbed if supported  by substantial  evidence” […]

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Evidence of Loss Based Upon Interference with Property Owner’s Ability to Extract Gas by Hydrofracking Disallowed as Speculative

The Third Department affirmed Supreme Court’s determination that respondents’ expert would not be allowed to testify at trial in this condemnation proceeding.  Petitioner brought the condemnation proceedings to obtain perpetual easements for underground gas storage in the “Oriskany Sand” beneath the surface of the land owned by the respondents.  The respondents hired a geologist to […]

Inmate’s “Employee Assistant” Did Not Provide Meaningful Assistance in Preparation of Inmate’s Defense

In annulling the determination, the Third Department held that the inmate’s employee assistant did not provide meaningful assistance in the preparation of the inmate’s defense: We agree with petitioner that meaningful employee assistance was not provided in accordance with 7 NYCRR 251-4.2 in order for him to prepare a defense. Although petitioner requested that 19 […]

Husband’s Dissipation of His Separate Property Was a Factor in Increasing Wife’s Maintenance and Equitable Distribution

The Third Department increased the wife’s maintenance and equitable distribution awards based in part upon finding the husband had wasted and dissipated assets that were concededly entirely his separate property.  He had purchased an apartment house in New York City prior to the marriage for $130,000 and sold it during the marriage for $6 million. […]

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Religious Organization Vicariously Liable for Negligence of Volunteer Under Agency Theory

The Third Department affirmed Supreme Court’s finding that a volunteer [Strimling] was an agent of the defendant [Gateway], a corporation hosting a religious event, such that the defendant was vicariously liable with respect to an automobile accident involving the volunteer: A  principal-agent relationship can  include a volunteer when  the requisite conditions, including control and  acting […]

Negligence Suit Based Upon Shooting at Shopping Mall Dismissed

The Third Department affirmed the grant of summary judgment to the defendant shopping mall in a negligence suit based upon a shooting at the mall in which plaintiffs were injured.  The Court determined the shooting was not foreseeable and explained the relevant legal principles as follows: Landowners have a duty to take reasonable precautions to […]

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