The contract for the sale of a parcel of real property included the following: “It is the understanding of the parties that at the present time, seller is not in title to the property. Seller is a first mortgage holder and the mortgage is in default. In the event that the title holder does not agree […]
In affirming the dismissal of objections to a will, the Fourth Department explained that proof the decedent suffered from old age, infirmity and dementia was not necessarily inconsistent with testamentary capacity, and, where there is direct evidence the decedent had the necessary ability to understand, even medical opinion is of minor importance: “It is the […]
In finding that a co-executor (who could no longer be sued by any of the beneficiaries because all had executed releases) had standing to contest a final accounting submitted by the other co-executor, the Fourth Department wrote: An executor is a fiduciary who owes “a duty of undivided loyalty to the decedent and ha[s] a […]
In an Article 78 proceeding, the Fourth Department determined the punishment imposed upon an inmate (for an assault on staff) after a Tier III disciplinary hearing, was too severe. The Court determined that “the punishment imposed of four years’ confinement in the Special Housing Unit (SHU) together with four years’ loss of good time and […]
The Fourth Department ruled that Family Court could not revoke a suspended jail sentence for non-payment of support by the father without giving the father the chance to rebut the allegations against him: The Support Magistrate previously had issued an order “on consent” in November 2011 (November order), setting forth that the father admitted that […]
In finding that an insurance company was required to defend, the Fourth Department explained the relevant criteria in the context of a summary judgment motion: An insurer’s duty to defend is “ ‘exceedingly broad’ and an insurer will be called upon to provide a defense whenever the allegations of the complaint ‘suggest . . . […]
The Fourth Department determined that counsel for a nonparty witness cannot object, i.e., participate, in a deposition of that witness. The Court wrote: …“[C]ounsel for a nonparty witness does not have a right to object during or otherwise to participate in a pretrial deposition.CPLR 3113 (c) provides that the examination and cross-examination of deposition witnesses […]
In an opinion by Justice Peters, the Third Department upheld the determination of the Workers’ Compensation Board that the claimant, who was bitten by a tick, had established a claim for Lyme disease and was entitled to compensation for “motor neuron disease, as well as consequential anxiety and stress disorder.” In the Matter of Bailey v […]
n an opinion by Justice Rose, the Third Department reversed the decision of the Workers’ Compensation Board because the Workers’ Compensation Law Judge refused to allow the carrier to further develop the record (by calling witnesses). The Court stated: “It is axiomatic that both the claimant and the employer or its workers’ compensation carrier are […]
After denying a motion to set aside a verdict, the trial court directed the parties to settle judgment on notice. The appeal of ruling was dismissed. The Second Department explained: “[N]o appeal lies from a decision, or an appealed paper directing the settlement of a judgment (see CPLR 5512[a]; … . Moreover, plaintiff’s right to […]
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