In this case the Second Department included a clear discussion of the elements of proof necessary to create a constructive trust: “(1) a confidential or fiduciary relationship, (2) a promise, (3) a transfer in reliance thereon, and (4) unjust enrichment…”. Henning vs Henning, 2011-09955, Index No. 11901/11 Second Dept. 2-20-13
“A written report prepared by a nontestifying doctor interpreting the results of a medical test is not admissible into evidence. …[O]pinion evidence must be based on facts in the record or personally known to the witness …” D’Andria vs Pesce, 2011-03506, Index No. 16320/02 Second Dept. 2-20-13
“Since the [res ipsa loquitur] doctrine merely permits an inference arising from the evidence in a negligence case, the plaintiff’s failure to plead res ipsa loquitur does not foreclose its application on summary judgment or at trial.” Wicks vs Leemilt’s Petroleum, Inc., 2011-01891, Index No. 1843/08 Second Dept. 2-20-13
The Second Department affirmed the dismissal of a complaint because the complaint asserted theories not mentioned in the notice of claim. “A party may not add a new theory of liability which was not included in the notice of claim …”. Williams vs County of Westchester, 2011-10614, Index No. 15002/08 Second Dept. 2-20-13
The Second Department reversed the trial court’s grant of a petition to file a late notice of claim. “The petitioner did not demonstrate a reasonable excuse… . The petitioners’ assertion that they only recently discovered that they had a claim against the City is not an acceptable excuse … . * * * The fact […]
The Court of Appeals, in a full-fledged opinion by Judge Pigott, over a dissent, determined that the prevailing wage requirement of Labor Law 220 did not apply to construction work for the Bath Volunteer Fire Department (BVFD) which had procured its own funding for a new firehouse: After an investigation, the Department of Labor (DOL) […]
The Court of Appeals, in a full-fledged opinion by Judge Smith, determined that defense counsel’s failure to move to suppress based upon a violation of Criminal Procedure Law 710.30, which requires notice of any identification of the defendant as the perpetrator, did not rise to ineffective assistance. Although the People provided notice of an identification […]
The Court of Appeals, in a full-fledged opinion by Judge Read, determined the requirement that employees of the School District of the City of Niagara Falls reside in the City of Niagara Falls serves a legitimate purpose and is not related to job performance. Therefore, only notice and an opportunity to respond to the allegation […]
The Court of Appeals determined the “records pertaining to the routine inspection, maintenance and calibration of breathalyzer machines can be offered as evidence in a criminal trial without producing the persons who created the records. …[S]uch records are nontestimonial…” Judge Pigott agreed with that “Confrontation Clause analysis” but wrote a dissent about the nature of […]
A defamation complaint was dismissed because the plaintiff, a journalist, was deemed to be a “limited public figure,” and there was no showing the challenged statements were made with “actual malice or gross irresponsibility.” The First Department noted that the statement which included the word “liar” was likely to be understood as opinion, not fact. […]
Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy