The Second Department noted that incarceration tolls the 10-year period for consideration of a predicate felony: Although the period of time between the defendant’s 1999 conviction and the commission of the felonies for which he stands convicted in this case was more than 10 years, the 1999 conviction constituted a predicate felony for purposes of […]
Applying a “DeBour” analysis, the Second Department determined the police did not have the right to frisk the defendant. The police approached the defendant because he was holding two or three cigarettes and the police thought he may be selling loose cigarettes. The police noticed evidence of gang membership and defendant acknowledged being a member. […]
The Second Department determined there was insufficient evidence to support defendant’s convictions for depraved indifference assault and assault on a police officer. The facts did not demonstrate defendant acted with depraved indifference, nor was the injured police officer engaged in a “lawful duty” when he stopped defendant’s car in the absence of reasonable suspicion of […]
The Second Department determined that grabbing a woman by the waist, spinning her around and releasing her did not amount to unlawful imprisonment: …[T]he evidence was legally insufficient to establish, beyond a reasonable doubt, that the appellant committed acts which, if committed by an adult, would have constituted the crime of unlawful imprisonment in the […]
In a full-fledged opinion by Justice Mazzarelli, the First Department determined, among many other contract-issues, that delays allegedly caused by regulators (re: asbestos-removal) were included in the contract provision which insulated the contractee from delay-related damages: “A clause which exculpates a contractee from liability to a contractor [Bovis] for damages resulting from delays in the […]
The First Department determined that a retainer agreement for work “up to” a trial in a divorce action precluded the law firm from recovering any fees for the trial. To cover those fees a second retainer agreement was required: The plain language of the retainer states that the law office’s representation of Blisko includes work […]
The Second Department determined, in a slip and fall case, the town did not demonstrate (in support of its motion for summary judgment) that it did not create the alleged dangerous condition (an allegedly inadequate cover on a catch basin): If one of the recognized exceptions applies, written notice [of a defect] is not required…. […]
The First Department ruled defendants were not entitled to attorney-client communications as discovery in an action alleging negligent representation in a probate and accounting proceeding: The court properly denied the motion to compel because there is no merit to defendants’ argument that the filing of this malpractice action placed the subject matter of the privileged […]
In affirming the denial of defendant’s summary judgment motion where plaintiffs’ complaint alleged defendant coerced decedent into executing estate planning documents, the First Department noted that hearsay evidence may be considered as long as it is not the only evidence offered: While defendant correctly asserts that plaintiffs submitted certain hearsay evidence in opposition to the […]
The Fourth Department reversed Supreme Court and ordered insertion of a feeding tube under general anesthesia for petitioner, Joseph P. The Fourth Department noted there was evidence Joseph P. was “alert, awake, and communicative, … enjoys social interaction and activities” and, with a feeding tube, has “an excellent prognosis with many years of life.” The […]
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