The prosecutor’s failure to get the court’s permission to re-submit charges to a second grand jury was a jurisdictional defect requiring dismissal of the indictment after a guilty plea. The first grand jury took “no affirmative action” on drug charges before them. There were not enough votes to indict on or dismiss the charges. The […]
The First Department determined an intentional assault would not sever the causal connection between injury to the plaintiff and the bar’s serving alcohol to a person alleged to have been visibly intoxicated, as well as the bar’s alleged failure to provide proper security. Carver vs P.J. Carney’s, 9216, 103191/10 First Dept. 2-7-13
The Court of Appeals, in a full-fledged opinion by Judge Smith, determined there were questions of fact whether the insured’s, USF&G’s, allocation of reinsurance proceeds in this billion dollar asbestos case was reasonable in that, inter alia, it ignored “bad faith” claims not covered by the the reinsurance: We conclude … that there is an […]
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 […]
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