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PLAINTIFF’S HUSBAND, THE INSURED, WAS DRIVING WHEN PLAINTIFF WAS SERIOUSLY INJURED IN A TRAFFIC ACCIDENT; PLAINTIFF MAY BE ABLE TO SHOW HER HUSBAND HAD REQUESTED COVERAGE ON HER BEHALF AND, BECAUSE THE INSURER (ALLEGEDLY) NEGLIGENTLY FAILED TO PROVIDE THE COVERAGE, THE INSURER IS OBLIGATED TO COVER HER LOSS, DESPITE HER STATUS AS A NONCLIENT (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined that the injured plaintiff might be able to show her husband (the insured) requested supplemental spousal liability (SSL) coverage on her behalf and that she was harmed by the insurer’s failure to provide it, despite her status as a nonclient. Plaintiff’s husband was driving and plaintiff was […]

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A TEACHER IS NOT A PERSON LEGALLY RESPONSIBLE FOR THE CARE OF A STUDENT WITHIN THE MEANING OF THE SOCIAL SERVICES LAW; THEREFORE A SCHOOL DISTRICT IS NOT OBLIGATED TO REPORT SUSPECTED CHILD ABUSE BY A TEACHER (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined that the teacher (Grunwald) accused of sexual abuse of a student in this Child Victims Act suit was not a person legally responsible for the child’s care within the meaning of the Social Services Law. Therefore the defendant school district did not have a duty to report […]

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AT THE SUPPRESSION HEARING THE PEOPLE DEMONSTRATED THE TRAFFIC STOP OF DEFENDANT’S VEHICLE WAS BASED ON A POLICE OFFICER’S COMPUTER DMV CHECK WHICH SHOWED DEFENDANT’S INSURANCE HAD LAPSED; IN SUPPORT OF THE SUPPRESSION MOTION THE DEFENDANT SUBMITTED VERIFICATION THAT THE INSURANCE HAD NOT LAPSED; AT THAT POINT THE PRESUMPTION OF RELIABILITY DISAPPEARED AND THE PEOPLE WERE REQUIRED TO SHOW THE RELIABILITY OF THE DMV CHECK, WHICH THEY FAILED TO DO (FOURTH DEPT).

The Fourth Department, reversing Supreme Court’s denial of suppression and dismissing the indictment, determined the People did not meet their burden of going forward at the suppression hearing by demonstrating the legality of the police conduct. The traffic stop was justified by a DMV check showing the insurance of defendant’s vehicle had lapsed. In support […]

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DEFENDANT SHOULD NOT HAVE BEEN SENTENCED AS A PERSISTENT VIOLENT FELONY OFFENDER WITHOUT A HEARING DEMONSTRATING THE CRITERIA HAVE BEEN MET (FOURTH DEPT). ​

The Fourth Department, vacating defendant’s sentence, determined the judge should have granted defendant’s request for a hearing before sentencing defendant as a persistent violent felony offender. There had been no determination whether the criteria for sentencing as a persistent violent felony offender (at least two sentences for violent felonies within the last 10 years) had […]

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THE MAJORITY CONCLUDED THE GUN SHOTS AND THE 911 CALL STATING FOUR BLACK KIDS, ONE WITH A GUN, WERE WALKING AROUND JUSTIFIED APPROACHING DEFENDANT ON THE STREET AND JUSTIFIED PURSUING HIM AND SEARCHING HIM WHEN HE RAN; TWO DISSENTERS NOTED THAT THE DEFENDANT DID NOT MATCH THE 911 CALLER’S DESCRIPTION AND ARGUED HIS FLIGHT ALONE DID NOT JUSTIFY PURSUIT (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, determined the police lawfully approached the defendant on the street, lawfully pursued him when he ran, and lawfully searched him, recovering a handgun. The police had heard gun shots and were aware of a 911 call indicating four Black kids were walking around and one had a gun. […]

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ALTHOUGH PLAINTIFF CROSSED INTO DEFENDANT’S ONCOMING LANE TO PASS A MAIL TRUCK, DEFENDANT WAS NOT ENTITLED TO SUMMARY JUDGMENT; THERE WAS A QUESTION OF FACT WHETHER DEFENDANT REACTED REASONABLY TO AN EMERGENCY; TWO OTHER CARS HAD ENTERED DEFENDANT’S LANE TO GO AROUND THE TRUCK JUST BEFORE THE COLLISION (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant’s motion to dismiss the complaint in this traffic accident case should not have been granted. Plaintiff pulled into defendant’s lane of traffic to go around a mail truck. Just prior to the collision with plaintiff two other cars had passed the mail truck by pulling into defendant’s […]

AFTER REMOVING THE FLASHING AND CAULKING AROUND A SECOND-STORY WINDOW, PLAINTIFF WAS GIVEN PERMISSION TO LOWER THE LIFT TO THE GROUND TO GO THE BATHROOM; THE UNSECURED WINDOW FELL ON HIS HEAD; PLAINTIFF WAS NOT THE SOLE PROXIMATE CAUSE OF THE ACCIDENT AND WAS ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on his Labor Law 240(1) action. After the flashing and caulking around the second-story window were removed, plaintiff was given permission to go to the bathroom and he lowered the scissors lift he was working from to the ground. The unsecured window […]

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MOTHER’S DECLINING HEALTH WAS A FACTOR IN THE COURT’S GRANTING MOTHER’S PETITION TO RECOCATE WITH THE CHILDREN NEAR HER MOTHER IN TENNESSEE; THE DISSENT ARGUED THE REFEREE DID NOT ADEQUATELY CONSIDER THE EFFECT ON VISITATION WITH FATHER AND MOTHER DID NOT MEET HER BURDEN TO SHOW THE CHILDREN WOULD BE BETTER CARED FOR OR BETTER EDUCATED IN TENNESSEE (FOURTH DEPT).

The Fourth Department, over a dissent, determined mother’s petition for sole custody and permission to relocate to Tennessee was properly granted: … [M]other testified at the hearing that she has been the primary caregiver of the children and that her health has been steadily declining. She further established that the maternal grandmother, who moved to […]

ATTEMPTED ASSAULT SECOND DEGREE IS A LESSER INCLUSORY CONCURRENT COUNT OF ATTEMPTED ASSAULT FIRST DEGREE; THE TWO COUNTS MUST BE SUBMITTED TO THE JURY IN THE ALTERNATIVE (FOURTH DEPT).

The Fourth Department reversed the attempted assault second conviction as a lesser inclusory concurrent count of attempted assault in the first degree. Defendant had been convicted of both: The two counts should have been submitted to the jury in the alternative. People v Roach, 2023 NY Slip Op 05872, Fourth Dept 11-17-23  

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PLAINTIFF’S ATTORNEY HAD REPRESENTED THE DEFENDANT IN THIS CASE IN A MATTER INVOLVING SUBSTANTIALLY SIMILAR ALLEGATIONS OF MEDICAL MALPRACTICE; THE MOTION TO DISQUALIFY PLAINTIFF’S ATTORNEY AND THE ATTORNEY’S SMALL LAW FIRM SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined plaintiff’s attorney, Laraby, and Laraby’s law firm, must be disqualified in this medical malpractice action. Laraby had represented the defendant in this case in a matter involving substantially similar allegations of malpractice: The plaintiff in the prior representation, whose baby had suffered from essentially the same injuries as […]

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