In affirming summary judgment (for an “account stated”) in favor of an attorney who had submitted bills to his client for services rendered, the Third Department wrote: Here, plaintiff demonstrated its entitlement to judgment as a matter of law by tendering evidence that it generated invoices for services rendered on a monthly basis, mailed those […]
Plaintiff’s decedent was killed while riding a snowmobile on a trail on privately owned land. Plaintiff’s snowmobile struck the side of a tractor-trailer carrying logs. The private logging road where the accident occurred was also used as a snowmobile trail. Plaintiff sued the owner of the land. The Third Department upheld the trial court’s ruling […]
The audit division of the Department of Taxation and Finance found the petitioner’s cash sales receipts inadequate to perform an audit. The audit division therefore used a one-day “indirect audit” to estimate what petitioner’s cash sales were (a one-day observation of the operation of the restaurant). In upholding the method used by the audit division […]
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 […]
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