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​ THE MOTION TO AMEND THE COMPLAINT TO ADD A CLAIM FOR PUNITIVE DAMAGES SHOULD HAVE BEEN GRANTED; ADDING ALLEGATIONS WHICH INCREASE A DEFENDANT’S EXPOSURE TO LIABILITY DOES NOT CONSTITUTE PREJUDICE TO THE DEFENDANT (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined the motion to amend the complaint to add a claim for punitive damages did not prejudice defendant (Eldridge) and should have been granted: The court improvidently exercised its discretion and should have granted plaintiffs’ motion to amend the complaint to add a claim for punitive damages against Eldridge […]

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DEFENDANT APPEARED IN COURT WITH A SUBSTITUTE COUNSEL WHO INFORMED THE COURT ANOTHER LEGAL AID LAWYER WAS BEING ASSIGNED TO DEFENDANT’S CASE; DEFENDANT WAS NOT “WITHOUT COUNSEL” WITHIN THE MEANING OF CPL 30.30; THE ASSOCIATED SPEEDY-TRIAL TIME-PERIOD SHOULD HAVE BEEN CHARGED TO THE PEOPLE, NOT THE DEFENDANT (CT APP). ​

The Court of Appeals, reversing the Appellate Term. determined the defendant was not “without counsel” during an eight-day period. Therefore that eight-day period must be charged to the People and the People were not ready for the trial within the statutory 90 days: Under CPL 30.30 (4) (f), a “period during which the defendant is […]

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FORENSIC EVIDENCE OF COMPLAINANT’S SEXUAL ACTIVITY SHOULD NOT HAVE BEEN EXCLUDED UNDER THE RAPE SHIELD LAW; DEFENDANT’S RIGHT TO PUT ON A DEFENSE WAS VIOLATED; TWO-JUDGE DISSENT (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Lynch, reversing the Appellate Division, determined forensic evidence of the complainant’s sexual activity should not have been excluded pursuant to the Rape Shield Law. Under the circumstances, by excluding forensic evidence of sexual activity which did not implicate the defendant deprived defendant of the right to […]

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THE MAJORITY HELD THE APPELLATE DIVISION SHOULD HAVE CONSIDERED MOTHER’S APPEAL OF FAMILY COURT’S FINDING MOTHER DID NOT HAVE STANDING TO BRING HER CUSTODY/HABEAS CORPUS PETITION STEMMING FROM THE OUT-OF-STATE FATHER’S FAILURE TO RETURN THE CHILDREN; THE MAJORITY SENT THE CASE BACK TO THE APPELLATE DIVISION FOR CONSIDERATION OF THE STANDING ISSUE; THREE DISSENTERS ARGUED FAMILY COURT ERRED WHEN IT DISMISSED THE HABEAS CORPUS PETITION BECAUSE NO CUSTODY ORDER WAS IN PLACE (CT APP).

The Court of Appeals, reversing the Appellate Division, over a three-judge comprehensive dissent, determined the Appellate Division erred when it refused to consider mother’s appeal of the denial of her habeas corpus petition seeking the return of her children. The children visited father out-of-state and one of them was not allowed to return. The Appellate Division […]

THE UNIVERSAL LIFE INSURANCE POLICY AT ISSUE WAS NOT SUBJECT TO INSURANCE LAW 3203(A)(2) WHICH REQUIRES A PROPORTIONAL REFUND WHEN THE INSURED DIES DURING THE PREMIUM PERIOD (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Singas, answering a certified question from the Second Department, determined that the universal life policy at issue was not subject to Insurance Law 3203(a)(2) which requires a proportional refund of a paid life insurance premium when the insured dies during the period covered by the […]

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EXPERT EVIDENCE ABOUT THE EFFECT OF A DRUG MIXED WITH ALCOHOL ON DEFENDANT’S ABILITY TO FORM THE INTENT TO COMMIT MURDER AND ASSAULT SHOULD HAVE BEEN ADMITTED; DEFENDANT SHOULD HAVE BEEN ALLOWED TO LAY A FOUNDATION TO QUALIFY AN EMAIL WHICH INCLUDED HEARSAY AS A BUSINESS RECORD; NEW TRIAL ORDERED.

The Third Department, reversing defendant’s attempted murder and assault convictions, determined expert testimony explaining the effects of a drug taken by the defendant along with alcohol should have been admitted. In addition, an email in which a police officer, who was not at the scene, referred to the defendant’s condition as “highly intoxicated” should not […]

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DEFENDANT WAS NOT GIVEN NOTICE OF SOME OF THE EVIDENCE RELIED ON BY COUNTY COURT FOR THE SORA RISK ASSESSMENT; THE MATTER WAS REMANDED FOR A NEW HEARING (THIRD DEPT).

The Third Department, reversing (modifying) County Court, determined defendant was not given notice of some of the grounds County Court relied upon for an upward departure re: defendant’s SORA risk-level assessment. That constituted a violation of defendant’s right to due process: While … defendant [was] on notice that his persistent sexually-motivated criminal conduct would be relied upon […]

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THE PLAINTIFF’S EXPERT’S ASSERTION THAT THE FAILURE TO DIAGNOSE ATHEROSCLEROTIC CARDIOVASCULAR DISEASE PROXIMATELY CAUSED DECEDENT’S PREMATURE DEATH WAS SUFFICIENT TO RAISE A QUESTION OF FACT ON CAUSATION IN THIS MEDICAL MALPRACTICE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s expert’s affidavit raised a question of fact whether defendants’ failure to diagnose plaintiff’s decedent’s atherosclerotic cardiovascular disease proximately caused decedent’s premature death: … Supreme Court properly determined that the affirmation of the defendants’ expert established, prima facie, that the treatment provided by the defendants was not a […]

PURSUANT TO EXECUTIVE ORDERS RESPONDING TO THE COVID-19 PANDEMIC, THE TIME BETWEEN THE FILING OF A FELONY COMPLAINT AND ARRAIGNMENT ON AN INDICTMENT WAS EXCLUDED FROM THE SPEEDY TRIAL CLOCK; HERE THE DEFENDANT’S MOTION TO DIMSISS SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing County Court, determined the COVID-19 toll specific to CPL 30.30 and 190.80 applied and the People, therefore, did not violate the speedy trial statute: In response to the COVID-19 pandemic, on December 30, 2020, former Governor Andrew Cuomo issued Executive Order No. 202.87, which provided that “[s]ection 30.30 and [s]ection 190.80 […]

PLAINTIFF WAS STRUCK BY DEFENDANT’S VEHICLE; DEFENDANT DRIVER IS EXPECTED TO SEE WHAT SHOULD BE SEEN; WHETHER PLAINTIFF WAS CONTRIBUTORILY NEGLIGENT SHOULD NOT HAVE BEEN CONSIDERED; PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment in this vehicle-pedestrian accident case should have been granted. Whether plaintiff was contributorily negligent should not have been considered: … [P]laintiff, who was wearing a bright green safety vest, was standing at or near the sideview mirror of the cab while the cab […]

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