In a full-fledged opinion by Justice Richter, the First Department determined a property owner was responsible for ensuring the safe condition of a sidewalk that did not directly abut the defendant’s property. The sidewalk was separated from the defendant’s property by a strip of land owned the City. The Court determined the terms “abutting” and […]
The Court of Appeals, in a full-fledged opinion by Judge Pigott, determined that the plaintiff in this personal injury action was entitled to a potential bias jury instruction. The fact witness subpoenaed by the defendant (CSI) was paid $10,000 and the high fee was not explained: Plaintiff testified that she stepped into a “dip in […]
The Court of Appeals, in a full-fledged opinion by Judge Read, over a partial dissent, determined that General Business Law 627-a, which requires a health club to have an automated external defibrillator (AED) and a person qualified to use it, does not impose tort liability based upon a failure to use the device. Here plaintiff’s […]
The defendant’s arrest for “disorderly conduct” was not supported by probable cause. Specifically, the proof was insufficient to support the “public harm” element of the offense. “During daylight hours on a public street, defendant made two abusive statements claiming harassment to a police officer who was seated in a patrol car. …[T]he public outburst was […]
The jury sent out a note asking “Is intent defined as premeditated desires or actions once engaged?” The trial judge responded to the question by reading an expanded definition of intent and explaining “intent does not require premeditation.” Defense counsel did not object to the way the judge handled the jury’s question. The First Department […]
“Mutual mistake may furnish the basis for the reformation of a written agreement where the signed writing does not express the actual agreement of the parties…. Parol evidence is admissible to establish the actual agreement. There is a heavy presumption that the executed agreement reflects the true intention of the parties, and a correspondingly high […]
This decision includes a clear discussion of the doctrines of res judicata and collateral estoppel, the (non)application of those doctrines to a “nominal party,” and the (non)application of those doctrines to a prior proceeding with a lower standard of proof. Matter of Sherwyn Toppin Marketing Consultants, Inc. vs New York State Liquor Authority, 2012-01119, Index […]
“The protection against lawsuits brought by injured workers that is afforded to employers by Workers’ Compensation Law [sections] 22 and 29(6) also extends to entities that are alter egos of the entity which employs the plaintiff …”. Quizhpe vs Luvin Construction Corp., 2012-01175, Index No. 21761/06 Second Dept. 2-6-13
In a full-fledged opinion by Justice Austin, the First Department determined, as a case of first impression, an adopted child of the decedent should share in trusts created by the decedent even though the decedent’s wife surrendered the child for a second adoption eight years after the adoptive father’s death and the admission of his […]
In a Freedom of Information Law (FOIL) case brought by the New York Times against the City of New York Police Department, the First Department determined several important procedural aspects of a FOIL request including the proper vehicle to address an untimely response or ruling (Article 78), the proper vehicle for hybrid FOIL and declaratory […]
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