The Fourth Department determined the People did not meet their “burden of going forward” at the suppression hearing and suppressed the evidence seized from the defendant. After an anonymous call describing a person who looked nothing at all like the defendant, the police approached, detained and searched the defendant: The officer who approached defendant testified […]
The Fourth Department reversed defendant’s conviction for criminal impersonation because the jury was allowed to consider a theory of prosecution that was not charged: …[T]he court’s jury instructions with respect to the crime of criminal impersonation in the first degree permitted the jury to convict him upon a theory not charged in the indictment, and […]
The Fourth Department determined there was insufficient evidence to support a grand larceny charge based upon the defendant’s taking a jeep from his girlfriend’s residence. Prior to defendant’s taking the jeep, his girlfriend had agreed to transfer it to him—an offer she subsequently told defendant was “off:” The Fourth Department held the People had not […]
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
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