The Third Department upheld the SORA court’s upward departure from the SORA guidelines based upon the defendant’s exhibitionist sexual conduct in prison. The Third Department wrote: Even if, under factor 13, defendant had been assessed the full 20 points for unsatisfactory conduct while confined “with sexual misconduct” (for a total of 55 points, still a […]
In upholding the trial court’s denial (without a hearing) of a 440 motion to vacate the defendant’s conviction based upon newly discovered evidence (i.e., a statement made by a juror to an investigator), the Third Department wrote: Nor do we discern any error in County Court’s summary denial of that part of defendant’s motion that […]
In this case the defendant was convicted of manslaughter in the death of a three-year-old child. In his statement to the police, the defendant said the child fell while she was in the shower. At trial the defendant testified the child also fell on the stairs. The trial court gave an “inconsistent statements” charge to […]
The Second Department, in a full-fledged opinion by Justice Austin, determined that the UB-04 (no-fault form) was not the functional equivalent of the N-F 5 (no-fault form). Therefore, receipt by the no-fault carrier of the UB-04 form from the heath care provider did not trigger the 30-day period in which a no-fault insurer is required […]
In a common law negligence and Labor Law 200 action, the Second Department explained when a general contractor can be held liable for a dangerous condition. Here the plaintiff was injured when he slipped on ice and snow at the work site. The general contractor was seeking indemnification under a contract: “[A] party seeking contractual […]
After a trial awarded the plaintiff over $17,000,000, the Second Department reversed determining (1) the negligent provision of medical care cause of action should have been dismissed because it was not included in the notice of claim, and (2) the 1983 causes of action should have been dismissed because they were not adequately pled in […]
The Second Department dismissed a complaint against a town because the notice of claim alleged “damages for negligence arising out of the use, operation, ownership, maintenance, custody, and control of Hynes Road” but did not allege defective design or negligent construction of a road, the specific theories alleged in the complaint: A notice of claim […]
The Second Department explained the application of the six-year “contract” statute of limitations where the duty alleged to have been breached is a continuing one: “[W]here a duty imposed prior to a limitations period is a continuing one, the statute of limitations is not a defense to actions based on breaches of that duty occurring […]
The Second Department ruled that an oral contract, as well as a related quantum meruit claim, were not enforceable under the statute of frauds (General Obligations Law): A party’s admission of the existence and essential terms of an oral agreement is sufficient to take the agreement out of the statute of frauds… . However, if […]
In remitting the case for a hearing to determine whether defendant was properly served with the complaint, the Second Department wrote: Here, the affidavit of service of the plaintiff’s process server describing service of process on the defendant NES Medical Services of New York, P.C. (hereinafter NES), constituted prima facie evidence of proper service on […]
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