The Third Department annulled the disciplinary hearing determination which found that the petitioner had engaged in prohibited “violent conduct” based on a tape recorded conversation. After reviewing the tape, the Court ruled that the disciplinary rules prohibiting “conduct involving the threat of violence” and participation in “a work stoppage, sit-in, lock-n, or other actions which […]
The First Department reversed Family Court’s finding of medical neglect related to a five-month-old’s fractured femur. Family Court accepted the proof that the baby, for the first time in his life, rolled over and fell off a couch when the father left him briefly to throw away a soiled diaper. Family Court’s medical-neglect determination was […]
A judgment which included punitive damages was assessed against an insured. The insured sued the insurance company for a bad-faith failure to settle the libel and slander claims within policy limits. The First Department determined the insurance company was entitled to summary judgment because public policy precludes the insured from recovering the punitive damages portion […]
A homeowner was sued by a utility employee who was injured when a staircase leading to the homeowner’s basement collapsed. At the deposition the homeowner testified the house was new when he bought it and he had made no alterations to the stairway. The plaintiff was granted summary judgment pursuant to the doctrine of res […]
In this contract action, the issue at the heart of the case before the Second Department was the preclusive effect of a bankruptcy court ruling and the doctrine of “equitable mootness” which prohibits disturbing a bankruptcy plan already implemented. The easiest way to convey the nature of the legal issues in the case is to […]
Proof that the defendant threatened the complainant with a taser or stun gun was legally insufficient to establish the “dangerous instrument” element of burglary in the first degree and menacing in the second degree. Although the Second Department determined it was harmless error, the Court also noted that it was error to shackle the defendant […]
By pleading guilty a defendant forfeits appellate review of a claim that his statutory right to a speedy trial pursuant to Criminal Procedure Law 30.30 was violated. However, a defendant’s constitutional speedy trial claim survives both a guilty plea and a waiver of the right to appeal. People v Franco, 2013 NY Slip Op 01570, 2009-10119, […]
Although the Second Department concluded it was harmless error, the Court noted that the trial court erred when it participated in reading back certain trial testimony to the jury. The Court wrote: “We take this opportunity to emphasize that ‘[w]hen, during a read-back of testimony, a trial judge assumes the role of a witness or […]
In a contract action, the Second Department laid out the black letter law on the interpretation of unambiguous language, the doctrine of “exclusio unius est exclusio alterious,” and the criteria for a declaratory judgment. The controversy concerned the amount of a bonus which was determined, according to the terms of the contract, by whether the […]
The Second Department determined that “detrimental reliance” does not need to be demonstrated to recover for misconduct by a notary public under Executive Law section 135 where the plaintiff does not allege fraud as the theory of recovery. The plaintiff in this case alleged the notary’s misconduct resulted in the recording of a forged deed […]
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