In reversing a conviction because the trial judge did not handle a jury note properly, in violation of CPL 310.30, the Second Department explained: …[T]he court received a substantive jury note but did not set that note forth on the record and allow counsel a full opportunity to suggest an appropriate response. …[T]he court failed […]
The Second Department explained the two factors a defendant must demonstrate for a downward departure in a SORA proceeding: First, a defendant must identify, as a matter of law, an appropriate mitigating factor, namely, a factor which “tends to establish a lower likelihood of reoffense or danger to the community and is of a kind, […]
The Second Department reversed the dismissal of medical malpractice and wrongful death causes of action because a question of fact about whether there was a deviation from the standard of care by a hospital employee was raised by conflicting expert opinions, one of which was “conclusory” on the issue of proximate cause: Although, generally, a […]
The plaintiff fell when a plank on a catwalk broke. In the course of the decision, which addressed several Labor Law claims, the Second Department explained the criteria for a Labor Law section 200 cause of action based on an alleged dangerous condition: Labor Law § 200 “is a codification of the common-law duty imposed […]
In upholding the sufficiency of a complaint seeking damages for violations of Labor Law section 196-d, alleging that a 15 to 20% “service charge” on catering and hospital forms was actually a “gratuity,” the Second Department wrote: Labor Law § 196-d provides, in pertinent part, that “[n]o employer . . . shall demand or accept, […]
The Second Department determined that a release that was defective because it excluded subrogation claims did not start the 90-day clock, pursuant to CPLR 5003-a(e), for payment of the settlement amount: Here, contrary to the plaintiff’s contention, the general release provided by the plaintiff was defective, since it expressly excluded potential subrogation claims against the […]
The Second Department determined Supreme Court erred when it denied plaintiff’s motion for a change in custody/visitation without holding a hearing. The plaintiff had alleged, among other things, the defendant operated a vehicle in an impaired state, posing a danger to the children: Here, the plaintiff made the necessary showing entitling him to a hearing […]
The Second Department explained how the exception to Family Ct Act 1039-b[b], relating to making reasonable efforts to reunite parent and child, works. Once an enumerated condition which eliminates the need to make reasonable efforts to reunite is demonstrated, the burden switches to the parent to show that the exception should be applied: Here …ACS […]
The Second Department determined a sexual assault allegedly perpetrated by the son of the homeowners was not an insured “occurrence” within the meaning of the homeowners’ insurance policy: Here, Joseph M. allegedly was insured under a homeowner’s insurance policy issued by the plaintiff to his parents, which provided personal liability coverage for claims made against […]
The Second Department determined a question of fact had been raised about whether a property owner was liable to a pedestrian who allegedly fell because of the condition of the sidewalk. Because the sidewalk was essentially part of the defendant landowner’s driveway, the sidewalk was subject to “special use” by the landowner which may impose […]
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