The Second Department noted that a guilty plea forfeits all ineffective assistance claims except those related to the plea-bargaining: …[T]o the extent that the defendant’s claim of ineffective assistance of counsel does not directly involve the plea-bargaining process, it was forfeited upon his plea of guilty …. People v Barrett, 2013 NY Slip Op 02410, 2011-04637, […]
The Second Department noted the criteria for preemption of state law by the Martin Act: …[T]he Supreme Court properly denied that branch of the defendant’s prior motion which was for summary judgment dismissing the complaint on the ground that it is preempted by the Martin Act (see General Business Law art 23-A). Since the plaintiff’s […]
In reversing the Family Court’s award of sole custody to the mother without a hearing, the Second Department wrote: Here, the Family Court did not possess adequate relevant information to enable it to make an informed and provident determination as to the children’s best interest so as to render a hearing unnecessary. Indeed, the court […]
In reversing Family Court’s grant of visitation to the children’s grandmother, the Second Department wrote: A court determining a petition for grandparent visitation under Domestic Relations Law § 72(1), must undertake a two-part inquiry. First, it must determine whether the grandparent has standing to petition for visitation rights based on the death of a parent […]
In dismissing a medical malpractice action which was based upon a physician’s alleged failure to detect a medical condition from the review of a sonogram, a condition which may have caused the parents to terminate the pregnancy, the Second Department reviewed the available damages in such an action. Ultimately the Second Department determined that the […]
The plaintiff was a passenger in a car which was involved in an accident, injuring plaintiff. Plaintiff sued the driver of the car she was in (Pistorino). Based on the finding that Pistorino had violated the Vehicle and Traffic Law by making a left turn in front of an oncoming car driven by defendant Allen, […]
In reversing a conviction because of the trial court’s refusal to consider an “untimely” peremptory challenge, the Second Department wrote: During the second round of voir dire, after questioning of the second group of prospective jurors was completed and each side had exercised challenges for cause, the Supreme Court asked defense counsel if he wished […]
The First Department, in a full-fledged opinion by Justice Saxe, determined that an insurance police which covered the original one-story building did not cover the additional floors subsequently under construction. In a full-fledged opinion by Justice Saxe (with a dissent), the First Department wrote: “Coverage cannot be afforded on liability for which insurance was not […]
Smoke from defendant Moore’s fireplace was entering a neighbor’s (Trager’s) home. Trager sued Moore and the defendant company (B & P) hired by Moore to fix their fireplace. The motion court dismissed the cause of action against B & P. The First Department reinstated the cause of action against B & P finding that Trager […]
In reversing the trial court’s dismissal of a medical malpractice complaint, the First Department wrote: In this medical malpractice appeal, defendants do not dispute that they departed from the accepted standard of care by incorrectly informing plaintiff that her April 9, 2007 PET scan was negative for recurrent cancer and not correcting that misinformation until […]
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