The Fourth Department determined plaintiff had raised a question of fact re: medical malpractice where decedent fell off an x-ray table when the attendant left the room to develop the x-rays: Defendant failed to meet its “ ‘initial burden of establishing the absence of any departure from good and accepted medical practice or that the […]
The Fourth Department determined that the petitioner had demonstrated its property, which was used to house actors and staff for seasonal theaters and generated no income, met the criteria for tax-exempt property under Real Property Tax Law 420-a: According to [the] director, the housing of actors and staff together promotes countless hours of volunteer work […]
The Fourth Department determined the one month statute of limitations for a motion to reopen a default judgment of tax foreclosure applied even where the respondent asserts he or she was not notified of the proceeding: We agree with petitioner, however, that respondent’s motion was untimely. “A motion to reopen a default judgment of tax […]
The Fourth Department annulled a determination finding petitioner had violated inmate rules which was based entirely on the contents of the inmate’s mail (opened and read by prison authorities). The Fourth Department wrote: Pursuant to 7 NYCRR 720.4 (f) (2), the prison superintendent must request documentation from the person seeking authority to open incoming mail […]
The Fourth Department determined that “disorderly conduct” as a family offense does not require the conduct to take place in public: Contrary to respondent’s contention, petitioner met her burden of establishing by a preponderance of the evidence that respondent committed the family offense of disorderly conduct … . Although respondent’s conduct did not take place […]
The Fourth Department determined a choice of forum clause must be enforced and noted the difference between choice of forum and choice of law: Supreme Court properly granted defendant’s motion to dismiss the complaint pursuant to CPLR 3211 (a) (1). According to the “Standard Terms and Conditions” of the agreement …, “[a]ny litigation arising in […]
The Fourth Department determined Supreme Court erred in transferring a case to another venue sua sponte and in determining that an action seeking to annul the denial of a variance affected real property within the meaning of CPLR 507: Petitioner commenced this CPLR article 78 proceeding seeking to annul two determinations of respondent made in […]
In determining the hospital’ petition for retention of a patient for involuntary psychiatric care should have been granted, the Second Department wrote: Paulina D. is a 23-year-old woman who suffers from severe anorexia nervosa. She has been at Elmhurst Hospital (hereinafter the Hospital) “continually” for 15 months. At one point during that period, Paulina D. […]
The Fourth Department noted the criteria for invalidating a stipulation to a record on appeal: It is undisputed … that plaintiff stipulated to settle the record … prior to seeking leave to reargue or renew and has not sought to be relieved from his stipulation … . Once plaintiff stipulated to the record on appeal, […]
The Fourth Department determined the People did not present sufficient evidence defendant targeted the victim and the SORA court did not set forth the relevant findings of fact and conclusions of law. Therefore the SORA score was reduced by 20 points: At the SORA hearing, the People had “the burden of proving the facts supporting […]
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