In a divorce proceeding plaintiff sought a contempt finding and the imposition of monetary penalties or fines in connection with defendant’s failure to comply with a court order. The Second Department explained the principles underlying civil versus criminal contempt as follows: “[U]nlike fines for criminal contempt where deterrence is the aim and the State is […]
The Second Department noted that a subpoena duces tecum may not be used for discovery purposes: “[A] subpoena duces tecum may not be used for purposes of discovery or to ascertain the existence of evidence”…. Here, the subpoena duces tecum served by the defendants improperly sought production of certain materials that the defendants had failed […]
In a slip and fall case, the defendant moved for summary judgment. Because the plaintiff’s expert had not been previously disclosed, Supreme Court refused to consider the expert’s affidavit. In reversing, the Second Department wrote: “[A] party’s failure to disclose its experts pursuant to CPLR 3101(d)(1)(i) prior to the filing of a note of issue […]
The Second Department explained the criteria for a motion to consolidate and explained when consolidation, as opposed to joining two actions for trial, is not appropriate: “A motion to consolidate two or more actions rests within the sound discretion of the trial court” (… see CPLR 602). “Where common questions of law or fact exist, […]
In a Labor Law action stemming from a fall through an open manhole, the plaintiffs submitted transcripts of one the plaintiff’s deposition testimony as part of plaintiffs’ motion for summary judgment on liability. Supreme Court denied plaintiffs’ motion on the ground that the certified deposition transcripts submitted by them were not signed. In determining that […]
In finding defendant’s conviction for possession with intent to sell was against the weight of the evidence, the Second Department (with a dissent) wrote: …[T]he amount of cocaine recovered from the defendant was relatively small and not inconsistent with personal use. Indeed, convictions for criminal possession of a controlled substance involving intent to sell generally […]
The Second Department determined that a trial judge can rescind a mistrial declaration and noted that a mistrial granted with the consent of the defendant does not bar retrial: When a mistrial is declared in a criminal case without the consent, or over the objection, of the defendant, the prohibition against double jeopardy contained in […]
The Second Department determined the trial court quashing of an subpoena served upon a defense witness deprived defendant of his constitutional right to present a defense and required a new trial. People v Eastment, 2013 NY Slip Op 03687, 2nd Dept, 5-22-13
There was a collision involving a car self-insured by Hertz, the petitioner. The respondent driver of the Hertz car alleged she collided with another car which left the scene. Based on a description of the other vehicle and the last four digits of the license number. Hertz determined the owner, Morrison, and insurer, Travelers, of […]
The Second Department determined that plaintiff-wife’s stipulation that variable supplement fund (VSF) benefits were not marital property should be upheld, even though the law was unclear at the time of the stipulation and the Court of Appeals subsequently determined the benefits were marital property: The Referee was correct in noting that, at the time of […]
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