The First Department, in a full-fledged opinion by Justice Oing, affirming Supreme Court, determined the contract provisions compelling arbitration should be enforced in this complex dispute among the owners and operators of nursing homes in Arizona. The terms of the contracts and the history of the litigation are far too detailed to fairly summarize here. Matter […]
The First Department, reversing Supreme Court’s denial of a petition to enforce an out-of-state subpoena, determined the identities of the subjects of two scholarly articles linking cosmetic talcum powder products with mesothelioma were not protected by HIPAA’s privacy rule or the federal Common Rule: The information sought by the subpoenas … is clearly relevant to […]
The First Department, reversing Supreme Court, determined striking defendant’s answer for destruction of video evidence in this slip and fall case was not warranted, an adverse inference jury instruction was a sufficient sanction. Defendant provided video of plaintiff’s fall in compliance with plaintiff’s attorney’s request. Nine months later plaintiff’s attorney requested video showing the area […]
The First Department, reversing Supreme Court, determined defendant was plaintiff’s special employer and plaintiff’s action for personal injury was precluded by his election of workers’ compensation benefits: Plaintiff testified that he received all his work instructions from an employee of defendant, the building’s manager … . Both plaintiff and the building’s manager testified that they […]
The Fourth Department, over a two-justice dissent, reversed defendant’s conviction on ineffective-assistance grounds. Defense counsel did not object to the prosecutor’s repeated statements to prospective jurors that he can sleep at night because he is a prosecutor and no longer a defense attorney. Defense counsel agreed to alter the statutory peremptory juror-challenge procedure, which requires […]
The Fourth Department, reversing Supreme Court, determined plaintiff did not satisfy the criteria for an easement by necessity for access to a landlocked parcel: “[T]he party asserting an easement by necessity bears the burden of establishing by clear and convincing evidence . . . that there was a unity and subsequent separation of title, and […]
The Fourth Department, reversing Supreme Court, determined the arbitrator’s ruling that petitioner firefighters were entitled to paid emergency leave should have been confirmed. In recent weeks, the appellate courts across the state have been emphasizing the finality of an arbitrator’s award, even where the court might have decided the matter differently: “[J]udicial review of arbitration […]
The Fourth Department, reversing Supreme Court, determined the negligent supervision causes of action against the defendant school, school district, board of education and department of transportation should not have been dismissed. Infant plaintiffs alleged they were subjected to sexual misconduct on a school bus by a male student from kindergarten through second grade. The Fourth […]
The Third Department, reversing defendant’s conviction by guilty plea to a superior court information (SCI), determined defendant could not waive indictment to an A felony for which a life sentence is available: CPL 195.10 provides, in relevant part, that a defendant may waive indictment and consent to be prosecuted pursuant to an SCI where “the […]
The First Department, in a full-fledged opinion by Justice O’Neill, affirming defendant’s conviction, over an extensive dissent, determined the police had reasonable suspicion supporting a level three traffic stop. The registration number of the van defendant was driving had been the subject of police reports for two prior incidents, a road rage incident during which […]
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