The Second Department dismissed a complaint against a law firm for malpractice because the law firm was not in privity with the plaintiffs with respect to the real estate transactions at issue. The law firm represented the defendant in the transactions: The law firm established, prima facie, its entitlement to judgment as a matter of […]
A worker on a ship in dry-dock was injured when he fell through an open hole in the floor or deck. He brought an action pursuant to the Labor Law. Although the action was within the jurisdiction of federal maritime law, the Second Department held that the state labor law claims were not preempted by […]
The Second Department determined the failure of one insurance company, Fage, to notify another insurance company, Utica, of an automobile accident until 2 ½ years after the accident justified Utica’s refusal to defend and indemnify Fage under the commercial liability umbrella policy issued by Utica to Fage: The umbrella policy requires Fage to notify Utica […]
The Second Department explained the burden of proof for demonstrating documents are immune from discovery as material prepared in anticipation of litigation as follows: “The burden of proving that a statement is privileged as material prepared solely in anticipation of litigation or trial is on the party opposing discovery” … . More particularly, “[t]he party […]
The Second Department determined a complaint could not be dismissed on the ground that an attorney’s unnotarized affirmation was submitted in opposition to the motion, rather than an affidavit: When an attorney is a party to an action, and affidavits are required to support or oppose a request for relief, that attorney may not rely […]
In reinstating two counts of an indictment that were dismissed upon the trial court’s review of the sufficiency of the proof before the grand jury, the Second Department wrote: “Courts assessing the sufficiency of the evidence before a grand jury must evaluate whether the evidence, viewed most favorably to the People, if unexplained and uncontradicted—and […]
The Second Department determined the trial court’s imposition of restitution at sentencing, where restitution was not part of the plea agreement, required that the defendant be given the opportunity to withdraw his plea or to accept the enhanced sentence: Although a court is free to reserve the right to order restitution as part of a […]
In finding the defendant did not make a valid waiver of his right to appeal because the colloquy was inadequate, in spite of the defendant’s signing a written waiver, the First Department wrote: We note that litigation over the validity of appeal waivers, which arises regularly from many courts, can best be avoided if trial […]
The Second Department determined a 28-hour delay between arrest and arraignment did not render defendant’s confession involuntary: Approximately 28 hours elapsed between the time the police arrested the defendant and the time the defendant made the statement sought to be suppressed. While an undue delay in arraignment is properly considered when assessing the voluntariness of […]
The Second Department reversed defendant’s conviction because a detective was allowed to testify about a statement made by a nontestifying codefendant in violation of the defendant’s right of confrontation under Crawford: …[O]ver the defendant’s objection, the trial court allowed the prosecutor to elicit, from a detective, the statement of a nontestifying codefendant that the defendant […]
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