The Third Department determined the failure to request a jury charge on venue waived any related appellate issue: Initially, to the extent that defendant contends that the People failed to prove by a preponderance of the evidence … that the underlying crimes occurred within the geographical jurisdiction of Franklin County, we note that “unlike territorial […]
The Third Department determined the following scenario legitimately led to the defendant’s arrest under the DeBour criteria: The officers arrived at the scene and observed approximately eight people sitting on the steps. As the officers approached the group, one of them – later identified as defendant– abruptly stood up and attempted to enter the building, […]
In reversing a jury verdict in favor of the defendant, the First Department held that a hearsay statement about the cause of the plaintiff’s fall, contained in a hospital report, should not have been presented to the jury: Generally, admissions not germane to the treatment or diagnosis of a plaintiff’s injuries are not admissible under […]
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 […]
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