In a full-fledged opinion by Judge Lippman, the Court of Appeals determined the Internet Tax (Tax Law 1101(b)(8)(vi) was constitutional on its face and did not violate either the Commerce Clause or the Due Process Clause. The plaintiffs in the action, Overstock.com and Amazon.com, sued the New York State Department of Taxation and Finance. The […]
In reversing the Surrogate’s Court verdict, the Third Department, in a decision by Justice Spain, determined that the existence of a confidential relationship with the decedent is a question of fact for the jury (Surrogate’s Court determined the existence of the relationship as a matter of law). In addition, because the matter is to be […]
In a decision by Justice Spain, the Third Department reversed the dismissal of a complaint alleging that solar panels installed on defendants’ residential property violated a restrictive covenant. The Third Department wrote: We reach a different conclusion, however, with respect to plaintiff’s assertion that the panels violate the second restrictive covenant in the deeds, which […]
In a decision by Justice Rick, the Third Department affirmed the adoption of a child without the consent of the biological father: A biological father’s consent to adopt a child over six months old who was born out of wedlock is required only if the father “maintained substantial and continuous contact with the child as […]
The Third Department, in a decision by Justice McCarthy, determined Family Court improperly amended the allegations in a neglect petition: On this record, summary judgment was improperly granted. Significantly, the petition as filed only alleges that respondent neglected the children as a result of the events surrounding respondent’s March 2011 arrest. Nevertheless, Family Court granted the […]
In affirming the grant of visitation to a grandparent (where both parents are living), the Third Department, in a decision by Justice Egan, wrote: Where a grandparent seeks visitation and, as is the case here, both of the child’s parents are living, Family Court first must ascertain whether “conditions exist which equity would see fit […]
The Third Department, in a decision by Justice Peters, determined that an expert in a custody matter could rely on information provided by caseworkers who where not subject to cross-examination: Initially, both the mother and the attorney for the children contend that the opinion testimony of Elizabeth Schockmel, the court-appointed forensic psychologist, should have been […]
A sitting City Court judge was the complainant in a harassment case. A judge and a defense attorney from another county were appointed to handle the case. The defense attorney made a motion to have a special prosecutor appointed as well because of the relationship between the District Attorney’s Office and the complainant. That request […]
The First Department discussed the difference between the relation-back doctrine of CPLR 203(f) and the savings clause of CPLR 205(a): In a prior appeal in this action, we held that plaintiffs could not utilize the relation-back provisions in CPLR 203(f) to cure their defective initial complaint, based on their failure to comply with the subject […]
The First Department noted that a judicial hearing officer (JHO) does not have the power to find any person in contempt except a witness before him: While CPLR 4311 and 4317(a) give a referee, upon consent of the parties, the power to hear and determine all trial issues before the court, CPLR 4301 specifically precludes […]
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