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THE JUDGE COMMITTED A MODE OF PROCEEDINGS ERROR BY FAILING TO ACCURATELY AND FULLY INFORM THE DEFENDANT OF THE CONTENTS OF A JURY NOTE (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Wilson, determined the judge committed a mode of proceedings error by not fully explaining the contents of a jury note. The defendant testified that he was sitting in his parked car, with the engine running for heat, listening to music because he didn’t want to […]

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THE INVOLVEMENT OF A VAN IN A ROAD RAGE SHOOTING THREE WEEKS BEFORE THE TRAFFIC STOP AND AN INCIDENT WHERE A TRAFFIC AGENT WAS NEARLY STRUCK BY THE VAN 24 HOURS BEFORE THE STOP PROVIDED “REASONABLE SUSPICION” THAT THE DRIVER OF THE VAN AT THE TIME OF THE STOP WAS THE DRIVER DURING THE ROAD-RAGE AND TRAFFIC-AGENT INCIDENTS (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Halligan, determined “reasonable suspicion” supported a traffic stop of a van which had been involved in a road rage shooting three weeks before and had sped away from a traffic agent, nearly striking the agent, 24 hours before the stop. The driver who was involved […]

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IF A DEFENDANT’S GUILTY PLEA CASTS DOUBT UPON DEFENDANT’S GUILT OR THE VOLUNTARINESS OF THE PLEA, THE JUDGE MUST “INQUIRE FURTHER;” THIS ISSUE CAN BE APPEALED IN THE ABSENCE OF PRESERVATION BY A MOTION TO WITHDRAW THE PLEA OR VACATE THE CONVICTION; HOWEVER THIS EXCEPTION TO THE PRESERVATION REQUIREMENT DOES NOT APPLY IF A DEFENDANT FIRST RAISES A QUESTION ABOUT HIS GUILT AT SENTENCING (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge Troutman, over a two-judge concurring opinion, resolving a split of Appellate Division authority, determined that a defendant who pleads guilty but subsequently claims innocence at sentencing must, to preserve the issue for appeal, make a motion to withdraw his plea of vacate his judgment of […]

THE HOTEL, IN RESPONSE TO A REQUEST FROM FAMILY MEMBERS, ASSUMED A DUTY TO CHECK ON A GUEST WHO HAD THREATENED SUICIDE; THE HOTEL FULFILLED THAT DUTY; THE HOTEL, HOWEVER, DID NOT ASSUME A DUTY TO IMMEDIATELY CALL FOR EMERGENCY ASSISTANCE; THE HOTEL WAS NOT LIABLE FOR THE GUEST’S SUICIDE (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Cannataro, over an extensive dissenting opinion, determined the defendant hotel, after a request from a guest’s family, had assumed a duty to check on the guest who had threatened suicide in text messages to family members. The hotel fulfilled the assumed duty to check on […]

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THE MISTRIAL, GRANTED AFTER THE JURY WAS SWORN, DID NOT TRIGGER THE DOUBLE-JEOPARDY BAR TO FURTHER PROSECUTION BECAUSE THE JUDGE’S INQUIRY REVEALED THAT A JUROR’S COMMENTS, AND THE OTHER JURORS’ REACTIONS TO THOSE COMMENTS, IRREPARABLY TAINTED THE JURY (THIRD DEPT). ​

The Third Department, dismissing the defendant’s (respondent’s) prohibition petition, in a full-fledged opinion by Justice Mackey, determined that the mistrial granted after the jury had been sworn did trigger the double-jeopardy bar to further prosecution because the trial judge (the respondent) properly found “there was manifest necessity for the mistrial.” Comments made by juror No. […]

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RETROACTIVE APPLICATION OF THE FORECLOSURE ABUSE PROTECTION ACT (FAPA) DOES NOT VIOLATE THE TAKINGS CLAUSE OF THE US AND NY CONSTITUTIONS (THIRD DEPT).

The Third Department, reversing Supreme Court, determined retroactive application of the Foreclosure Abuse Prevention Act (FAPA) does not violate the Takings Clause of the US and NY Constitutions. The Court of Appeals has already ruled that retroactive application of FAPA does not violate due process or the Contract Clause: “Those who do business in [a] […]

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FAMILY COURT SHOULD NOT HAVE DELEGATED ITS AUTHORITY TO DETERMINE PARENTAL ACCESS BY CONDITIONING ACCESS ON THE CONSENT OF THE CHILDREN (SECOND DEPT).

The Second Department, reversing (modifying) Family Court, determined the court should not have delegated its authority to determine parental access by conditional parental access on the consent of the children: … “[A] court may not delegate its authority to determine parental access to either a parent or a child” … . Here, the Family Court […]

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PLAINTIFF ALLEGED DEFENDANT NEGLIGENTLY PERFORMED A ROBOTIC ASSISTED LAPAROSCOPIC ADRENALECTOMY; PLAINTIFF’S EXPERT, A GENERAL SURGEON WHO WAS EXPERIENCED IN LAPAROSCOPIC SURGERY, BUT NOT ROBOTIC SURGERY, SHOULD NOT HAVE BEEN PRECLUDED FROM TESTIFYING; THE LACK OF EXPERIENCE WITH ROBOTIC SURGERY WENT TO THE WEIGHT OF THE TESTIMONY, NOT ITS ADMISSIBILITY (SECOND DEPT).

The Second Department, reversing Supreme Court’s dismissal of the medical malpractice complaint, determined the testimony of the plaintiff’s expert, a general surgeon, should not have been precluded on the ground he was not qualified to testify about robotic surgery. The complaint alleged the defendant negligently performed a robotic assisted laparoscopic adrenalectomy: “A medical expert need […]

ALTHOUGH DEFENDANT HAD JURISDICTIONAL GROUNDS FOR VACATING THE JUDGMENT, HE WAIVED ANY JURISDICTIONAL ISSUES BY PARTICIPATING IN AN EXAMINATION UNDER OATH BEFORE MOVING TO VACATE THE JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that defendant had waived any jurisdictional (improper service and notice) issues by participating in an examination under oath in connection with the underlying renewal-judgment enforcement proceeding. Defendant had defaulted in the renewal-judgment proceeding and summary judgment had been awarded to plaintiff. After participating in the examination under oath, […]

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THE DEFAMATION SUIT BY PLAINTIFF MARINA OWNER AGAINST AN ENVRONMENTAL ADVOCACY ORGANIZATION AND A PUBLISHER WAS A STRATEGIC LAWSUIT AGAINST PUBLIC PARTICIPATION (SLAPP); DEFENDANT WAS ABLE TO SHOW ONE PUBLISHED STATEMENT WAS FALSE; THEREFORE THE ACTION CAN PROCEED WITH RESPECT TO THAT ONE STATEMENT (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the action by plaintiff marina-owner against defendant environmental advocacy organization and defendant publisher was a strategic lawsuit against public participation (SLAPP). Therefore the burden shifted to plaintiff to demonstrate there was a substantial basis in law to allege that published statements were false. The Second Department found […]

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