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PLAINTIFF FELL THROUGH AN UNGUARDED STAIRWAY OPENING AND WAS ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION; DEFENDANTS DID NOT SHOW THAT THE PRE-DEPOSITION SUMMARY JUDGMENT MOTION WAS PREMATURE (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined plaintiff should have been awarded summary judgment on the Labor Law 240(1) cause of action and the pre-deposition summary judgment motion was not premature. While transporting large wooden panels past a stairway, plaintiff fell through an unguarded stairway opening: The court should have granted plaintiff partial summary judgment […]

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THE UNIFIED COURT SYSTEM’S DENIAL OF COURT EMPLOYEES’ APPLICATIONS FOR RELIGIOUS EXEMPTIONS FROM THE COVID VACCINE MANDATE AFFIRMED (FIRST DEPT). ​

The First Department affirmed the NYS Unified Court System’s (UCS’s) denial applications for religious exemptions from the COVID vaccine mandate. The issue was analyzed under both the US and NYS Constitutions. The USC held the petitioners (USC employees) failed to meet the qualifications for employment by not complying with the mandate. The decision is too […]

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COUNSEL’S CONDUCT WAS NOT FRIVILOUS OR DESIGNED TO DELAY; COUNSEL WAS NOT GIVEN THE OPPORTUNITY TO BE HEARD BEFORE SANCTIONED; THE JUDGE DID NOT INDICATE WHY THE AMOUNT OF THE SANCTION WAS APPROPRIATE, $100 SANCTION REVERSED (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined the arguments made by counsel (appellant) were not “frivolous,” counsel’s conduct was not designed to delay, harass or maliciously injure another, the judge did not give counsel an opportunity to be heard before imposing sanctions, and the judge did not indicate why the amount of the sanction was […]

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PLAINTIFF’S COMPLAINT STATED CAUSES OF ACTION FOR FAILURE TO PAY WAGES UNDER THE “NO WAGE THEFT LOOPHOLE ACT” AND RETALIATION (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s claims for failure to pay wages and retaliation pursuant to Labor Law sections 193, 198 and  215 should not have been dismissed: The court incorrectly dismissed plaintiff’s Labor Law claims on the ground that the dispute was governed solely by the parties’ contract. Contrary to defendants’ contention, […]

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THE REVOCATION OF PETITIONER’S MEDICAL LICENSE WAS CONFIRMED; TWO DISSENTERS ARGUED THERE WAS INSUFFICIENT EVIDENCE OF THE REQUIRED STANDARD OF CARE, ESPECIALLY AS THE STANDARD APPLIES TO TERMINALLY ILL PATIENTS WHO CONSENT TO AGGRESSIVE TREATMENT (THIRD DEPT). ​

The Third Department, over a two-justice dissent, confirmed the revocation of petitioner’s medical license by the New York State Board for Professional Medical Conduct. The dissenters argued the publications used by respondent’s expert to assess the quality of care provided by petitioner were advisory in nature and did not apply to the aggressive care petitioner […]

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THE THIRD DEPARTMENT JOINS THE OTHER DEPARTMENTS IN HOLDING THAT A PLAINTIFF NEED NOT MAKE A MOTION TO SET ASIDE THE VERDICT TO PRESERVE AN “AGAINST THE WEIGHT OF THE EVIDENCE” ARGUMENT ON APPEAL (THIRD DEPT). ​

The Third Department, affirming the defense verdict in this medical malpractice case, joined the other appellate division departments in finding that a plaintiff may make a “verdict is against the weight of the evidence” argument on appeal without moving to set aside the verdict on that ground: … [We now join our colleagues in our […]

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DEFENDANT, WHO WAS SUFFERING FROM MENTAL ILLNESS, WAS CONVICTED OF MURDER; THE JURY’S REJECTION OF DEFENDANT’S “EXTREME EMOTIONAL DISTURBANCE” DEFENSE WAS AGAINST THE WEIGHT OF THE EVIDENCE, CONVICTION REDUCED; THE STRONG DISSENT ARGUED DEFENSE COUNSEL WAS INEFFECTIVE IN FAILING TO SUBMIT EVIDENCE OF DEFENDANT’S MENTAL ILLNESS AT THE SUPPRESSION HEARING (SECOND DEPT).

The Second Department, reducing defendant’s murder conviction to manslaughter first degree, over an extensive dissent, determined the jury’s determination that defendant failed to prove he was acting “under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse” (Penal Law § 125.25[1][a]), was against the weight of the evidence. Defendant, […]

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HERE FAMILY COURT HAD THE INHERENT POWER TO DETERMINE WHETHER RESPONDENT WAS THE CHILD’S FATHER; RESPONDENT WAS JUDICIALLY ESTOPPED FROM CONTESTING PATERNITY BASED ON HIS POSITION IN A PRIOR PROCEEDING (SECOND DEPT).

The Second Department, reversing Family Court, determined Family Court had the power to determine whether father (Gunderson) is responsible for the support of the child and father was judicially estopped from contesting paternity because he was awarded parental access in a prior proceeding: … [T]he Support Magistrate, sua sponte, dismissed the mother’s petition without prejudice […]

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THE COURT MAY ORDER A PARENT TO SUBMIT TO COUNSELING OR TREATMENT AS PART OF A CUSTODY OR PARENTAL ACCESS ORDER; BUT THE COURT MAY NOT IMPOSE SUCH CONDITIONS ON SEEKING PARENTAL ACCESS IN THE FUTURE (SECOND DEPT). ​

The Second Department noted that a court may order a parent to submit to counseling or treatment as part of a custody or parental access order, but the court cannot not impose those same conditions upon seeking parental access in the future: “A court deciding a custody proceeding may ‘direct a party to submit to […]

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PLAINTIFF’S EXPERT DID NOT ESTABLISH EITHER THE “GENERAL CAUSATION” OR “SPECIFIC CAUSATION” FRYE CRITERIA IN THIS MOLD-INJURY CASE (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined plaintiff’s expert did not offer sufficient proof plaintiff’s injuries were caused by exposure to mold. Neither the “general causation” nor “specific causation” criteria established by Frye v United States, 293 F 101, were met: General causation cannot be established through studies showing only a “risk” or “association” between […]

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