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PLAINTIFF SUFFICIENTLY IDENTIFIED THE CAUSE OF HER SLIP AND FALL AND DEFENDANTS FAILED TO DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF THE CONDITION; DEFENDANTS’ SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court, determined plaintiff sufficiently identified the cause of her slip and fall and defendants failed to demonstrate a lack of constructive notice of the condition: … [D]efendants’ own submissions raise a triable issue of fact whether a dangerous condition existed on the premises. Defendants submitted the deposition testimony of plaintiff, […]

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ALTHOUGH FATHER FAILED TO COOPERATE WITH THE PLACEMENT OF HIS CHILDREN WHILE INCARCERATED; HE MADE SERIOUS EFFORTS TO RECONNECT WITH THE CHILDREN AFTER HIS RELEASE; FAMILY COURT SHOULD HAVE GRANTED A SUSPENDED JUDGMENT RATHER THAN PERMANENTLY TERMINATING HIS PARENTAL RIGHTS (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined father, after his release from prison, made efforts to reconnect with his children which warranted a suspended judgment rather than permanent termination of his parental rights. While incarcerated father had not cooperated with efforts to place the children: A suspended judgment “provides a brief grace period to give […]

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DEFENDANT, PURSUANT TO CORRECTION LAW 168-A (3)(B), WAS DESIGNATED A “SEXUALLY VIOLENT OFFENDER” BASED SOLELY ON HIS OUT-OF-STATE CONVICTION OF A REGISTRABLE SEXUAL OFFENSE WHICH DID NOT INVOLVE VIOLENCE; THE CORRECTION LAW AS APPLIED TO DEFENDANT VIOLATED HIS RIGHT TO DUE PROCESS; TWO-JUSTICE DISSENT (FOURTH DEPT).

The Fourth Department, reversing County Court, over a concurrence and a two-justice dissent, determined designating defendant a “sexually violent offender” based solely upon an out-of-state conviction of a non-violent sexual offense violated defendant’s right to due process. The concurrence argued the Correction Law statute which allows such a “sexually violent offender” designation based on an […]

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STATEMENTS DEFENDANT MADE TO HIS INSURANCE CARRIER IN THIS TRAFFIC ACCIDENT CASE ARE NOT DISCOVERABLE (FOURTH DEPT). ​

The Fourth Department, reversing (modifying) Supreme Court in this traffic-accident case, determined plaintiff’s request for discovery of statements made by defendant to his insurance carrier should have been denied: The statements sought in plaintiff’s cross-motion constitute materials “produced solely in connection with the report of an accident to a liability insurance carrier . . . […]

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DEFENDANTS “EVANGELICAL LUTHERAN CHURCH IN AMERICA (ELCA)” AND “UPSTATE NEW YORK SYNOD OF THE EVANGELICAL LUTHERAN CHURCH IN AMERICA (SYNOD)” HAD THE POWER TO DISCIPLINE AND TERMINATE A PASTOR ACCUSED OF ABUSE; THEREFORE THERE WAS A QUESTION OF FACT WHETHER THOSE DEFENDANTS WERE THE PASTOR’S EMPLOYERS; THE NEGLIGENT HIRING, SUPERVISION AND RETENTION CAUSES OF ACTION SHOULD NOT HAVE BEEN DISMISSED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the negligent hiring, retention and supervision causes of action against Evangelical Lutheran Church in America (ELCA) and Upstate New York Synod of the Evangelical Lutheran Church in America (Synod) should not have been dismissed on the ground that the alleged abuser (a pastor) was not an employee. Although […]

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DEFENDANT WAIVED HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL BY REFUSING TO ATTEND THE TRIAL AND DIRECTING DEFENSE COUNSEL NOT TO PARTICIPATE IN THE TRIAL; A TWO-JUSTICE DISSENT CONCLUDED DEFENSE COUNSEL’S FAILURE TO PARTICIPATE CONSTITUTED INEFFECTIVE ASSISTANCE (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, affirmed defendant’s conviction after he was tried in absentia. Defendant was properly denied a request for new counsel. Defendant then directed his attorney not to participate in the trial and defendant did not attend the trial. Defense counsel did not participate, except to make a motion for a […]

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THE CLAIM IN THIS CHILD VICTIMS ACT PROCEEDING DID NOT SET FORTH ANY FACTUAL BASIS FOR THE ALLEGATION THE STATE WAS OR SHOULD HAVE BEEN AWARE OF SEXUAL ABUSE BY ANOTHER CHILD IN A FOSTER HOME AND BY AN EMPLOYEE OF A CHILDREN’S FACILITY; THE CLAIM SHOULD HAVE BEEN DISMISSED (THIRD DEPT).

The Third Department, reversing the Court of Claims in this Child Victims Act proceeding, determined the claim did not set forth any factual basis for the allegation defendants were or should have been aware of the abuse by a child in a foster home and by a staff member of a children’s facility. The claim, […]

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ALTHOUGH THERE WAS NO QUESTION PLAINTIFF’S CAR HYDROPLANED AND SLID INTO DEFENDANT’S LANE, DEFENDANT INCLUDED PLAINTIFF’S DEPOSITION TESTIMONY IN HIS MOTION FOR SUMMARY JUDGMENT WHICH RAISED A QUESTION OF FACT ABOUT HOW LONG PLAINTIFF’S CAR WAS IN DEFENDANT’S LANE BEFORE IT WAS STRUCK (THIRD DEPT).

The Third Department, reversing Supreme Court, determined defendant’s own motion papers, which included the deposition testimony of plaintiffs, raised questions of fact about whether the emergency doctrine applied in this car accident case. Plaintiff testified her car hydroplaned on rain water and slid into the oncoming lane where her car was struck by defendant’s. Plaintiff […]

THE FAILURE TO TIMELY SERVE THE COUNTY TREASURER WITH THE PETITION SEEKING JUDICIAL REVIEW OF A PROPERTY TAX ASSESSMENT, A VIOLATION OF RPTL 708 (3), REQUIRED DISMISSAL OF THE PETITION (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the petitioners in this action seeking judicial review of a property tax assessment did not demonstrate good cause for failing to timely serve the county treasurer. The petition should have been dismissed: RPTL 708 (3) requires that “one copy of the petition and notice shall be mailed within […]

GENERAL OBLIGATIONS LAW 9-103 PROVIDES IMMUNITY FROM NEGLIGENCE SUITS STEMMING FROM AUTHORIZED RECREATIONAL USE OF THE OWNER’S PROPERTY, BUT DOES NOT PROVIDE IMMUNITY FOR ACTIONS OR OMISSIONS BY THE OWNER ALLEGED TO BE “WILLFUL OR MALICIOUS” (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, determined plaintiff mountain biker’s (Fleming’s) cause of action alleging defendants’ failure to properly maintain a wooden bridge on a trail was properly dismissed pursuant to General Obligations law section 9-103. But the cause of action alleging the negligent failure to maintain the bridge and the negligent failure to […]

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