The Fourth Department reversed an Assault 2nd conviction and dismissed the indictment after a “weight of the evidence” review. The prosecution’s theory was that the defendant acted recklessly by pointing a sawed-off shotgun at the victim, disregarding the risk that it would fire. But the proof at trial was that the shotgun discharged just as […]
In a full-fledged opinion by Justice Centra, the Fourth Department determined a Monroe County Court Judge exceeded his authority by allowing defendants accused of crimes not listed in the relevant statute to participate in the judicial diversion program. The Court wrote: CPL 216.00 (1) provides as follows: “ ‘Eligible defendant’ means any person who stands charged […]
In finding that a stuck door could constitute a “dangerous condition,” the Fourth Department wrote: Plaintiff commenced this action seeking damages for injuries he allegedly sustained when, in the course of his employment, he was delivering a package to defendant’s property. He attempted to open a door but, according to plaintiff, the door would not […]
The Fourth Department determined a question of fact had been raised about whether a defendant/owner of the apartment had constructive notice of the presence of lead paint: The deposition testimony of [defendant] was equivocal and inconsistent with respect to whether he had constructive notice of a dangerous lead paint condition on his property. For instance, […]
The denial of summary judgment was affirmed by the Fourth Department. The plaintiff, a mechanic, was injured when a remote car starter started the car he was working on, dragging and running over him. The Court determined plaintiff had alleged sufficient facts to support the theory that the defendants (the owners/users of the car in […]
The Fourth Department determined that a defendant, Myers, was estopped from denying ownership of a vehicle, which was alleged to have been transferred to another defendant, Herring, because Myers’ license plates had not been removed: With respect to the issue of ownership, we note that, pursuant to Vehicle and Traffic Law § 420 (1), “[u]pon […]
In this case a notice of claim was filed naming the Erie County Medical Center Corporation (ECMCC) as defendant. In the complaint, the individual doctors, employees of ECMCC, were named as defendants. Overruling precedent to the contrary, the Fourth Department determined it was not necessary to name the individual employees in the notice of claim […]
A judgment in favor of the plaintiff after trial was reversed by the First Department because: (1) plaintiff’s son, a notice witness who testified about the alleged defective condition at the core of the lawsuit, had not been identified before trial; (2) a missing witness charge re: a purported employee of the defendant was given […]
The Third Department annulled a determination denying a police officer’s claim for accident disability benefits. The officer was injured when a wheeled stretcher collapsed. The Third Department determined the collapse of the stretcher was not a foreseeable consequence of the officer’s ordinary duties and, therefore, constituted an accident. In the Matter of Scharp v DiNapoli, 515287, […]
In confirming the denial of a police officer’s application for accidental disability retirement benefits, the Third Department noted that the injuries suffered when subduing a mentally disturbed person were the result of a risk inherent in the duties of a police officer and did not constitute “a sudden, fortuitous, out of the ordinary and unexpected […]
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