In a full-fledged opinion by Justice Richter, the First Department determined the New York City Administrative Code provision which imposed a $2000 fine for the removal of recyclable material from the curb violated the Eighth Amendment as applied. The code provision was designed to prevent large scale removal of recyclable material which deprived the City […]
The First Department noted that the one-year deadline for a motion to vacate a default judgment (CPLR 5015) was never triggered because the record included no proof that the notice of entry of the default judgment was served. Gottlieb v Northriver Trading Co, LLC, 2013 NY Slip Op 03618, 1st Dept, 5-21-13
In holding that an attorney’s letter sufficiently stated “time of the essence,” the First Department wrote: “A party need not state specifically that time is of the essence, as long as the notice specifies a time on which to close and warns that failure to close on that date will result in default”… . [The […]
The Fourth Department determined the sentence of a determinate term of incarceration for 2 ½ years for criminal possession of marijuana in the second degree was unduly harsh and severe. The sentence was reduced to 1 ½ years. People v Hirsh, KA 12-00043, 4th Dept, 5-17-13
In a full-fledged opinion by Justice Acosta, the First Department determined that the “City of New York’s decision to not apply an increased-take-home-pay (ITHP) benefit to police officers and firefighters placed into Tier III of the retirement system after July 1, 2009, and to continue deducting 3% of their wages towards their retirement benefits, violates […]
The First Department determined the teachers’ and school administrators’ unions’ grievances concerning staff cuts inherent in the Department of Education’s (DOE’s) plan to close 24 underperforming schools were arbitrable, rejecting the DOE’s argument. The arbitrator ruled the plan violated the collective bargaining agreement’s (CBA’s) requirements that staff cuts be done on the basis of seniority: […]
In reversing Family Court’s grant of the mother’s petition to modify a prior order of custody, the Third Department determined the children’s hearsay statements alleging abuse by the father was not corroborated, and therefore could not form the basis of a modification of custody: Inasmuch as Family Ct Act § 1046 (a) (vi) is applicable […]
The Third Department determined the relevant charges must be expunged because the hearing officer refused to call a witness, a violation of the inmate’s constitutional right: …[T]he Hearing Officer erroneously refused to call a correction officer who witnessed petitioner’s behavior while being escorted to his cell. Inasmuch as petitioner was deprived of his constitutional right […]
Because no explanation was provided to explain the requested witnesses’ (the inmate’s roommates’) alleged refusal to testify, the Third Department annulled the determination: Petitioner requested the testimony of three witnesses who shared a room with him. The Hearing Officer stated that inmate refusal forms for all three had been signed by the employee assistant, but […]
The Third Department determined the failure to provide the inmate with evidence he requested required the annulment of the guilty determination: Petitioner requested copies of any “to/from” forms related to the incident and, despite the fact that one of the correction officers testified to giving his account of the events at issue in such a […]
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