In finding that Lakeside, an adult care facility (ACF), was not liable for an assault by a resident, Fierro, upon the plaintiff (also a resident), the Second Department wrote: …[C]ourts have imposed a duty of care where “there exist special circumstances in which there is sufficient authority and ability to control the conduct of third […]
In finding that a question of fact had been raised about whether a police office, when responding to an emergency call in her vehicle, had exhibited reckless disregard for the safety of others (resulting in a collision), the Second Department wrote: Vehicle and Traffic Law § 1104 qualifiedly exempts drivers of authorized emergency vehicles from […]
A mechanic working in the basement of a two-family house left a trap door, which was directly outside the side door of plaintiff’s apartment, open. Plaintiff fell through the open trap door. In setting aside the jury verdict finding the mechanic was not negligent, the Second Department wrote: A jury verdict should not be set […]
In a full-fledged opinion by Justice Leventhal, the Second Department affirmed the suppression of a chemical breath-test because the police did not inform the defendant her attorney had appeared in the case before the test was administered. As Justice Leventhal described the “right to counsel” issue and holding: This case calls upon us to address […]
The Second Department reversed the motion court because a motion for a downward departure (SORA) pursuant to Correction Law 168-o(2) requires a hearing: By notice of motion dated September 21, 2010, the defendant moved pursuant to Correction Law § 168-o(2) for a downward modification of his risk level classification under the Sex Offender Registration Act […]
In reversing a larceny conviction, the Second Department explained that allowing the jury to consider the Lien Law presumption (where use of funds held in trust for purposes other than those of the trust can constitute larceny) as mandatory, rather than permissive, shifted the burden of proof to the defendant: Pursuant to Lien Law article […]
In upholding the trial court’s ruling that the proffered reasons for the exclusion of certain white jurors were pretextual, the Second Department wrote: In Batson v Kentucky (476 US 79, 94-98), the United States Supreme Court formulated a three-step test to assess whether peremptory challenges have been used to exclude potential jurors on the basis […]
The Second Department described the criteria for a downward departure from the SORA presumptive risk level as follows: A court has the discretion to downwardly depart from the presumptive risk level in a proceeding pursuant to the Sex Offender Registration Act (Correction Law art 6-C; hereinafter SORA) only after a defendant makes a twofold showing. […]
After a juror was discharged for misconduct, the People stated they did not want to go forward with the jury deliberations. The defense, however, wanted to continue to verdict with the remaining 11 jurors. The trial court ordered a mistrial. The defendant brought an Article 78 proceeding seeking to prohibit a second trial on double […]
The Second Department affirmed the motion court in finding that a question of fact had been raised about whether there was a “special relationship” between the insured and the insurance broker such that the insured could rely on the broker’s expertise and duty to advise: “While it is certainly better practice for an insured to […]
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