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 […]
In an opinion by Chief Judge Lippman, the Court of Appeals explained the criteria for the award of punitive damages in the context of the intentional diversion of storm water onto plaintiff’s property. In finding the award of punitive damages was not warranted the Court noted: “…[T]he conduct justifying such an award must manifest ‘spite […]
In reversing the dismissal of an Article 78 proceeding which sought to annul the denial of petitioner’s application for World Trade Center (WTC) disability benefits, the First Department determined the “World Trace Center presumption” had not been rebutted by the respondents: Once a petitioner establishes that he worked the requisite number of hours at the […]
The Third Department reversed the finding of the Worker’s Compensation Board that the claimant’s knee injury case had been “truly closed” in 2009, more than 18 years after the original injury. Worker’s Compensation Law section 123 prohibits an award of benefits “after a lapse of eighteen years from the date of the injury … and […]
In a case which resulted in a second appeal, defendant contested the validity of a board meeting in both the first and second appeal. The First Department, in a full-fledged opinion by Justice Renwick, explained that the ruling in the first appeal was binding both on the trial court and the appellate court as the […]
The Court of Appeals, in an opinion by Judge Pigott, held that an “Alford” plea entered in a criminal proceeding, in which there was no factual colloquy about the underlying offenses, should not be given a preclusive effect in a subsequent Worker’s Compensation proceeding related to the same facts. The opinion includes a discussion of […]
The Court of Appeals ruled that when re-sentencing under the Drug Law Reform Act of 2009 (DLRA–Criminal Procedure Law 440.46), the sentencing court can not alter multiple drug felony convictions originally imposed consecutively so that they run concurrently. When the court imposes a determinate sentence under the DLRA “[s]uch resentencing constitutes ‘alteration of the existing […]
In an opinion by Judge Graffeo, in addressing the appellant’s claim of ineffective assistance of counsel, the strategic reasons for not requesting that the jury be charged with lesser included offenses and for not requesting a severance when culpability is arguably unequal were discussed. In addition, the Court of Appeals addressed the level of corroborative […]
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