A question of fact precluded summary judgment denying probate where there was evidence the decedent did not intend to revoke a will that could not be found after her death. There is a presumption that a will that was last in decedent’s possession but can not be found after death has been revoked. But in […]
Petitioners had standing to seek review of a planning board’s site plan approval. Petitioners, who lived one half mile from the site, alleged “direct harm, injury that is in some way different from that of the public at large … . Their allegations that the approved construction project will harm their regular use, enjoyment, and […]
The Second Department explained that “[m]ere reference to general cleaning practices, with no evidence regarding any specific cleaning or inspection of the area in question, is insufficient to establish a lack of constructive notice” in opposing a motion for summary judgment in a slip and fall case. Mahoney vs AMC Entertainment, Inc., 2012-00582, Index No. […]
The Second Department, in a full-fledged opinion by Justice Lott, determined that a local law enacted by Nassau County which purported to repeal portions of state laws concerning property tax violated the New York State Constitution and the Municipal Home Rule Law. Matter of Baldwin Union Free Sch. Dist. v County of Nassau, 2013 NY Slip […]
The Second Department, in a full-fledged opinion by Justice Angiolillo, determined that where the state owns a navigable lake and the submerged land below the water, the state has the exclusive authority to regulate construction on the submerged land, absent delegation of that authority to the municipality. Town of Carmel v Melchner, 2013 NY Slip Op […]
The “primary assumption of risk” doctrine precluded a student baseball player’s lawsuit against his school where the student was struck in the face by a baseball “that had been hit on the ground with a fungo bat.” O’Connor vs Hewlett-Woodmere Union Free School District, 2-12-04146, Index No. 021556/09, Second Dept. 2-27-13
The prosecution moved for a mistrial based on defense counsel’s improper questioning of a witness in defiance of the court’s instructions. The court granted the mistrial. The First Department, in a full-fledged opinion by Justice Freedman, determined that the defendant could not be retried. “When the court declares a mistrial on the prosecution’s motion and […]
In this case, the Third Department included a clear description of the proof requirements for tortious interference with contract. Schmidt & Schmidt vs. Town of Charlton, 515053 Third Dept. 2-21-13
No appeal as of right lies from an order for an in camera inspection of documents (to address a discovery request) where the inspection had not yet been conducted. “Inasmuch as the order does not affect a substantial right of plaintiff, no appeal as of right lies therefrom…”. In addition, the Third Department determined that […]
In this case, the Second Department clearly laid out the acceptable sources of information, the applicable standards of proof, and the criteria for departure from the presumptive level in a SORA hearing. People vs Lacewell, 2008-07498, Second Dept. 2-20-13
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