The Second Department, reversing Family Court in this custody action, determined respondent uncle did not waive his right to counsel: Here, the maternal uncle had a statutory right to the assistance of counsel because he was a respondent in a child custody proceeding … . Although the record demonstrates that, at an appearance on the […]
The Second Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this slip and fall case was premature and should have been denied: A motion for summary judgment may be denied as premature where it appears that the facts essential to oppose the motion exist but cannot then be stated (see CPLR 3212[f] […]
The First Department determined the repeal of the Emergency or Disaster Treatment Protection Act (EDTPA) in April 2021 was not retroactive. Therefore defendant’s nursing home was immune from suit stemming from plaintiff’s decedent’s death from COVID-19. Although the Act does not confer immunity from gross negligence, gross negligence was not demonstrated because the Department of […]
The First Department, reversing defendant’s conviction and dismissing the indictment, determined the search of defendant’s car was not a valid search incident to arrest because defendant and the driver had already been removed from the car. The People elected not to rely on the appeal waiver because of the erroneous suppression ruling: The court improperly […]
The First Department, in a full-fledged comprehensive opinion by Justice Rodriguez, over a two-justice comprehensive concurring opinion, determined that the consolidated trial of two separate criminal transactions, without appropriate limiting jury instructions, was reversible error: The first indictment charged defendant with, among other counts, attempted murder. In relation to the first indictment, no gun was […]
The Fourth Department, reversing Supreme Court, determined the recreational use statute (General Obligations Law 9-103(1)(a)) did not apply to the sidewalk on which plaintiff was riding his motorized bicycle when he fell. Therefore defendant was not entitled escape liability based upon the statute. The sidewalk was along a busy road on the Syracuse University campus […]
The Fourth Department, reversing Supreme Court, determined plaintiff’s expert laid an adequate foundation for their qualifications in orthopedic medicine. The court noted that plaintiff’s expert need not have practiced in the same specialty as the defendant: “[A] plaintiff’s expert need not have practiced in the same specialty as the defendant[]” … , and “any alleged […]
The Fourth Department determined (1) the search of defendant’s premises and the seizure of switchblade was not justified by the emergency exception to the warrant requirement and (2) the criminal possession of a weapon conviction must be dismissed as an inclusory concurrent count of criminal possession of a weapon third: The court reasoned that the […]
The Fourth Department, reversing Supreme Court, determined (1) the action for damages for medical services was not appropriate for a clerk’s judgment for a sum certain pursuant to CPLR 3215(a) and (2) defendant raised a question of fact about whether he was served with the summons with notice pursuant to CPLR 308(4): … [T]he Clerk […]
The Fourth Department noted the the bed of a van is not considered an elevated work surface for purposes of Labor Law 240(1): Plaintiff and defendant’s principal moved the loaner jack to the edge of the van bed in preparation for lifting the device onto a four-wheeled cart. Plaintiff was injured when he and defendant’s […]
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