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A DEFAMATION COMPLAINT DISMISSED FOR FAILURE TO STATE A CAUSE OF ACTION LACKS A “SUBSTANTIAL BASIS IN LAW” WITHIN THE MEANING OF THE ANTI-SLAPP LAW (FIRST DEPT). ​

The First Department, in a full-fledged opinion by Justice Gonzalez, over a two-justice concurrence, determined the defendants were entitled to attorney’s fees pursuant to the anti-SLAPP law (see Civil Rights Law §§ 70-a, 76-a; CPLR 3211[g]-[h]). The plaintiffs sued defendant newspaper (The Daily Mail) alleging defamation and several related causes of action. Supreme Court dismissed […]

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ABSENT EXIGENT CIRCUMSTANCES, A MANUAL BODY-CAVITY SEARCH MUST BE SPECIFICALLY AUTHORIZED BY A WARRANT; THE DRUGS REMOVED FROM DEFENDANT’S BODY SHOULD HAVE BEEN SUPPRESSED (THIRD DEPT). ​

The Third Department, reversing County Court, determined the drugs were removed from defendant’s body during a manual body-cavity search, which requires a warrant specifically allowing it absent exigent circumstances. The warrant allowing the search of defendant’s person did not specifically authorize a manual body-cavity search and no exigent circumstances were alleged. The drugs should have […]

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HERE THE JUDGE’S DECISION TO EMPANEL AN ANONYMOUS JURY WAS NOT SUPPORTED BY SUFFICIENT REASONS; NEW TRIAL ORDERED (THIRD DEPT).

The Third Department, reversing defendant’s convictions and ordering a new trial, determined the judge had not set forth sufficient reasons for withholding the identities of the jurors. The jury remained anonymous throughout the trial. Jurors were referred to solely by their juror numbers: … County Court did not cite any threats to this jury and […]

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BRADY MATERIAL TURNED OVER TO DEFENDANT AFTER HE PLED GUILTY MAY HAVE AFFECTED HIS DECISIONS ABOUT WHAT PLEA OFFER TO ACCEPT AND WHETHER TO MOVE TO DISMISS CERTAIN CHARGES; THEREFORE DEFENDANT WAS ENTITLED TO AN EVIDENTIARY HEARING ON HIS MOTION TO VACATE THE CONVICTION (THIRD DEPT).

The Third Department, reversing County Court, determined defendant was entitled to a hearing on his motion to vacate his conviction by guilty plea. After the plea a new prosecutor turned over Brady material which had not been disclosed prior to the plea. Under the facts of the case, defendant’s awareness of the Brady material may […]

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SERVICE OF THE ORDER APPEALED FROM BY EMAIL DOES NOT START THE TIME TO TAKE AN APPEAL; FATHER’S REQUEST FOR TELEPHONIC AND WRITTEN CONTACT WITH HIS DAUGHTER PROPERLY DENIED; FATHER WAS INCARCERATED FOR PREDATORY SEXUAL BEHAVIOR INVOLVING A CHILD ABOUT THE SAME AGE AS HIS DAUGHTER (THIRD DEPT). ​

The Third Department, affirming Family Court’s denial of father’s request for telephonic and written contact with his daughter, in a full-fledged opinion by Justice Egan, determined Family Court did not abuse its discretion. Father is incarcerated after pleading guilty to predatory sexual assault against a child, possessing a sexual performance by a child, promoting a […]

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THE COMPLAINT STATED CAUSES OF ACTION AGAINST AN ACCOUNTING FIRM FOR MALPRACTICE, FRAUD AND AIDING AND ABETTING BREACH OF A FIDUCIARY DUTY; BOTH MOTHER AND SON ARE OWNERS OF A RESTAURANT; IT WAS ALLEGED THE SON’S TAKING A LARGE SALARY AND RECEIVING MILLIONS IN LOANS AGAINST THE BUSINESS WERE DOCUMENTED BY THE ACCOUNTING FIRM BUT NOT DISCLOSED TO MOTHER (FIRST DEPT). ​

The First Department, in a full-fledged opinion by Justice Renwick, determined the malpractice, fraud and breach of fiduciary duty causes of action against defendant accounting firm should not have been dismissed. Both plaintiff Ellen and her son Kenneth are owners of a restaurant. The complaint alleged Kenneth was looting the restaurant by taking a large […]

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THE TRANSFER OF DEFENDANT’S CASE TO A SPECIAL PROSECUTOR WAS JUSTIFIED BY THE EXPLANATION OF A CONFLICT WITHIN THE DA’S OFFICE; HOWEVER, THE TRANSFER BACK TO THE DA’S OFFICE WAS NOT BASED ON AN EXPLANATION WHY THE CONFLICT WAS NO LONGER A PROBLEM; THE TRANSFER BACK TO THE DA’S OFFICE WAS REVERSIBLE ERROR (THIRD DEPT). ​

The Third Department, in a full-fledged opinion by Justice Pritzker, reversing County Court, determined the prosecution of defendant’s case should not have been transferred from the special prosecutor, appointed two months before because of a conflict within the DA’s office, back to the DA’s office. The Third Department noted that the initial decision to appoint […]

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HERE PLAINTIFF CORPORATION, RC, DID NOT EXIST WHEN THE REAL ESTATE CONTRACT WAS ENTERED AND WAS NOT FORMED FOR SEVERAL YEARS UNTIL JUST BEFORE THE INSTANT LITIGATION; BECAUSE DEFENDANT DEALT WITH RC AS A CORPORATION FOR YEARS AND RECEIVED SOME BENEFIT FROM THE CONTRACT, THE DOCTRINE OF “CORPORATION BY ESTOPPEL” PROHIBITED DEFENDANT FROM AVOIDING ITS OBLIGATIONS UNDER THE CONTRACT BY ARGUING A NONEXISTENT CORPORATION CANNOT ENTER A CONTRACT (SECOND DEPT).

The Second Department, modifying Supreme Court, determined the “corporation by estoppel” doctrine prevented defendant from arguing the real estate purchase agreement was invalid because the corporate plaintiff (RC) did not exist at the time the contract was executed. RC was eventually formed years later just before this action commenced. The defendant had dealt with RC […]

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A MANAGING AGENT IS NOT LIABLE FOR INJURY CAUSED BY A DANGEROUS CONDITION ON THE MANAGED PROPERTY UNLESS THE MANAGING AGENT EXERCISES COMPLETE AND EXCLUSIVE CONTROL OVER THE OPERATION OF THE PROPERTY (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, determined the property managing agent did not exercise complete and exclusive control of the operation of the property and therefore could not be held liable for plaintiff’s trip and fall over a stub-up pipe protruding from a step: Supreme Court should have granted that branch of the defendants’ […]

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ALTHOUGH THERE WAS ADMISSIBLE EVIDENCE OF DOMESTIC VIOLENCE BY FATHER, THERE WAS NO ADMISSIBLE EVIDENCE THE CHILD WAS PRESENT; NEGLECT FINDING REVERSED (SECOND DEPT).

The Second Department, reversing Family Court, determined the admissible evidence did not support the finding that father neglected the child based on an act of domestic violence. Mother’s 911 call constituted admissible evidence of the domestic violence. But, although evidence the child was present apparently existed, it was never admitted in evidence: A recording of […]

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