The Fourth Department, reversing (modifying) Supreme Court, explained how the COVID toll of the statute of limitations works: “A toll does not extend the statute of limitations indefinitely but merely suspends the running of the applicable statute of limitations for a finite and, in this instance, readily identifiable time period” … . “[T]he period of […]
The Fourth Department, reversing (modifying) Supreme Court, dismissed the action against the city in this slip and fall case. There was a question whether the city repair to the street deteriorated over a period of a year or more. But in order to be liable for creating a dangerous condition, the defect must be the […]
The Fourth Department majority affirmed defendant’s conviction, but a two-justice dissent argument defense counsel allowed prejudicial evidence to come in without any strategic justification: From the dissent: Meaningful representation is “reasonable competence, not perfect representation” … . “However it is elementary that the right to effective representation includes the right to assistance by an attorney […]
The Third Department, in a full-fledged opinion by Justice Lynch, over a dissent, determined that the respondent NYS Unified Court System did not act arbitrarily and capriciously when it denied the petitioners’ (29 nonjudicial employees’) requests for religious exemptions from the COVID vaccine mandate. The Appellate Division, disagreeing with Supreme Court, held it was appropriate to […]
The First Department, reversing (modifying) Supreme Court, determined plaintiff’s motion for summary judgment on the Labor Law 240(1) cause of action should have been granted. Plaintiff fell through an opening in the floor when the plywood covering the opening shifted: While [defendants] argue that plaintiff was the sole proximate cause of his accident, that defense […]
The First Department, reversing Supreme Court, determined the People did not prove the search of a car which turned up a firearm and marijuana was a valid “inventory search:” The People failed to carry their initial burden of establishing a valid inventory search of defendant’s vehicle. Court of Appeals precedent “requires that a police officer […]
The First Department, reversing (modifying) Supreme Court, determined replacement of a 700 pound water heater which involved moving it with a hand truck raised questions of fact about the applicability of Labor Law 240 (1): Plaintiff’s evidence * * * raised triable issues whether the day-long work that involved multiple workers to replace a 6-foot […]
The First Department, reversing Supreme Court, determined the failure to offer any proof of mailing the summons and complaint was a jurisdictional defect: Plaintiff’s failure to comply with CPLR 308(2)’s mailing requirement was not a mere “technical infirmity” that may be overlooked by the court pursuant to CPLR 2001 … . “‘In deciding whether a […]
The First Department noted that the “nail and mail” service of process was valid and the failure to file affidavits of service within 20 days was not a jurisdictional defect: … [E]ach affidavit of service states that the process servers made three separate attempts at serving the individual defendants at various dates and times before […]
The Third Department, reversing defendant’s conviction, over a dissent, determined the judge’s response to a jury note was inadequate and the judge did not make the required initial determination that a witness was qualified to offer expert-opinion evidence on the child sexual abuse accommodation syndrome (CSAAS). The jury wanted to know whether a guilty verdict […]
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