The Fourth Department, reversing defendant’s conviction on several counts in this sexual abuse case, determined the trial testimony rendered the counts duplicitous: … [T]he trial testimony rendered counts 4, 5, 7, and 8 duplicitous. ” ‘Even if a count facially charges one criminal act, that count is duplicitous if the evidence makes plain that multiple […]
The Fourth Department, reversing Supreme Court, determined the FOIL request for county-sheriff disciplinary records which were created before Civil Rights Law 50-a was repealed in 2020 must be disclosed. Civil Rights Law 50-a had exempted disciplinary records from disclosure: Former section 50-a operated as an exception to the general rule that permitted public access through […]
The Fourth Department, over a two-justice dissent, affirmed the termination of father’s parental rights. The dissenters argued there was no admissible proof that father failed to plan for the children’s future for one full year: From the dissent: We agree with the majority that petitioner met its burden of establishing that respondent father failed to […]
The Fourth Department, reversing Supreme Court, determined defendant insurance company was obligated to defend plaintiff pediatrician who stands accused of the sexual abuse of a former patient: Supreme Court denied plaintiff’s [summary judgment] motion and granted defendant’s cross-motion [for summary judgment] on the grounds that the complaint in the underlying action did not assert claims […]
The Fourth Department, reducing defendant’s SORA risk-level from two to one, determined the 17-year-old involved in the offense was statutorily excluded from the class of victims: … [T]he court erred in assessing 20 points for the number of victims under risk factor 3 … . The court based its assessment on a determination that a […]
The Fourth Department, in an Article 78 proceeding transferred by Supreme Court, determined the respondent NYS Office of Children and Family Services should not have ruled that “petitioner’s acts of child maltreatment are relevant and reasonably related to employment in the childcare field.” The Fourth Department therefore directed that respondent “shall be precluded from informing […]
The Third Department, reversing defendant’s assault and related use and possession of a firearm convictions, determined there was insufficient evidence that defendant shared the intent to shoot the victim. The victim was shot. Defendant drove a car which followed the wounded victim who was then robbed by an occupant of the car: The trial evidence […]
The Third Department, over a substantive dissent, determined Supreme Court, sua sponte, properly dismissed the foreclosure action as abandoned pursuant to 22 NYCRR 202.27 based upon plaintiff’s failure to comply with the court’s directive. The dissent argued the criteria for a section 202.27 dismissal were not met and the motion to vacate the dismissal should […]
The Third Department, in a full-fledged opinion by Justice Powers, determined that a restrictive covenant from a common grantor restricting the use of the property to only “single-family residential purposes” prohibited plaintiff from using the property for short-term rentals through Airbnb. Such use is not “residential:” … [T]he restrictive covenant limits the permissible use to […]
The Third Department, in a full-fledged opinion by Justice Fisher, reversing Supreme Court, determined the Adirondack Park Agency (APA) properly issued permits for the application of an herbicide (ProcellaCOR EC) in Lake George to control an invasive aquatic plant called Eurasian watermilfoil (EWM). Supreme Court had granted the Article 78 petition and vacated the permits. […]
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