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LAWYERS FOR CHILDREN, WHICH IS CONTRACTUALLY OBLIGATED TO PROVIDE ATTORNEYS IN CHILD WELFARE MATTERS, HAS STANDING TO CHALLENGE THE HOST FAMILY HOMES PROGRAM WHICH PLACES CHILDREN WITHOUT THE PARTICIPATION OF ATTORNEYS (THIRD DEPT).

​The Third Department reversing Supreme Court, determined Lawyers for Children, which provides attorneys for child welfare matters, had standing to bring a petition challenging the Host Family Homes program which facilitates temporary placement of children in foster care without an attorney.  … [P]ursuant to Social Services Law § 358-a (6), Family Court is tasked with […]

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THE EVIDENCE THAT DEFENDANT INTENDED TO PURCHASE DEALER QUANTITIES OF COCAINE FROM A DEALER (SANCHEZ) AND COOKED CRACK COCAINE FOR THAT DEALER WAS NOT LEGALLY SUFFICIENT EVIDENCE OF AN INTENT TO ORGANIZE OR LEAD THE DEALER’S DISTRIBUTION NETWORK; CONSPIRACY CONVICTON REVERSED (THIRD DEPT).

The Third Department, reversing defendant’s conspiracy to distribute cocaine conviction, determined the conviction was not supported by legally sufficient evidence: … [D]efendant’s conviction of conspiracy in the second degree based upon the underlying crime of operating as a major trafficker is not supported by legally sufficient evidence. The evidence presented by the People shows only […]

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A SELLER OF REAL PROPERTY CAN REMAIN SILENT ABOUT DEFECTS IN THE PROPERTY BUT CANNOT TAKE STEPS TO THWART A BUYER’S DISCOVERY OF DEFECTS; HERE IT WAS ALLEGED THE SELLERS COVERED WATER DAMAGED WOOD WITH NEW PLYWOOD (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the complaint alleging the defendant sellers concealed water damage to the property should not have been dismissed. A seller of real property can remain silent about property defects (caveat emptor, buyer beware) but cannot act to thwart discovery of the defects. Here plaintiffs alleged the sellers put new […]

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ALLOWING A POLICE OFFICER TO NARRATE A VIDEO ALLEGEDLY DEPICTING THE DEFENDANT COMMITTING ASSAULT WAS REVERIBLE ERROR; THE FUNCTION OF THE JURY WAS USURPED (SECOND DEPT).

The Second Department, vacating some of defendant’s convictions, determined it was error to allow a police officer to interpret the video alleged to depict defendant committing assault: … [T]he trial court should have precluded the testimony of a police detective regarding his opinion as to what a video of the assault on the first victim […]

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DEFENSE COUNSEL DID NOT OBJECT TO AN ACCOMPLICE’S TESTIMONY ABOUT THE GUILTY PLEA ENTERED BY A NON-TESTIFYING PARTICIPANT IN THE SHOOTING (DEFENDANT WAS THEREBY DEPRIVED OF THE RIGHT TO CONFRONT A WITNESS AGAINST HIM); DEFENSE COUNSEL DID NOT REQUEST THE ACCOMPLICE JURY INSTRUCTION (WHICH REQUIRES CORROBORATION OF THE ACCOMPLICE’S TESTIMONY) OR THE MISSING WITNESS JURY INSTRUCTION; NEW TRIAL ORDERED (SECOND DEPT). ​

The Second Department, reversing defendant’s conviction, determined defendant did not receive effective assistance of counsel. An accomplice, Brenda, testified that another accomplice, Roberto, had pled guilty for his role in the shooting and Roberto’s cooperation agreement was placed in evidence with Brenda on the stand. Brenda also testified that defendant made incriminating statements after the […]

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MOTHER WAS AWARE OF THE GROUND FOR DISQUALIFYING FATHER’S ATTORNEY FOR YEARS BEFORE THE MOTION TO DISQUALIFY WAS MADE; MOTHER THEREBY WAIVED ANY OBJECTION TO FATHER’S COUNSEL (SECOND DEPT).

The Second Department, reversing (modifying) Family Court, determined mother’s motion to disqualify father’s attorney should not have been granted because mother was aware of the ground for the motion in 2019 and did not move to disqualify until 2022. She was deemed to have waived any objection to father’s attorney: The Family Court improvidently exercised […]

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BECAUSE, BASED ON A LINE OF DUTY REPORT, THE CITY HAD TIMELY KNOWLEDGE OF THE CIRCUMSTANCES AND LOCATION OF PETITIONER’S SLIP AND FALL, THE CITY WAS NOT PREJUDICED BY A DELAY IN FILING THE NOTICE OF CLAIM; THE PETITION FOR LEAVE TO FILE THE LATE NOTICE SHOULD HAVE BEEN GRANTED, DESPITE THE ABSENCE OF A REASONABLE EXCUSE FOR FAILING TO TIMELY FILE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined petitioner’s application for leave to file a late notice of claim in a slip and fall case should have been granted, despite petitioner’s failure to provide a reasonable excuse for the delay. The city had timely notice of the incident based on a line of duty report, and […]

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BECAUSE PETITIONER HAD SUBSTANTIALLY PREVAILED ON THE FOIL CAUSE OF ACTION, PETITIONER WAS ENTITLED TO ATTORNEY’S FEES AND LITIGATION COSTS, DESPITE THE FACT THAT MUCH OF THE LEGAL REPRESENTATION WAS BY PRO BONO COUNSEL (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the petitioner was entitled to attorney’s fees and litigation costs because petitioner had substantially prevailed on its FOIL causes of action. The fact that much of the legal representation was pro bono was not a bar to recovery: … [T]he petitioner substantially prevailed on its FOIL cause […]

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IN THIS SIDEWALK/CURB SLIP AND FALL CASE, THE VILLAGE DEMONSTRATED IT DID NOT HAVE WRITTEN NOTICE OF THE CONDITION AND THE ABUTTING PROPERTY OWNER DEMONSTRATED HE DID NOT CREATE THE CONDITION OR CAUSE THE CONDITION BY SPECIAL USE (SECOND DEPT).

​The Second Department, reversing Supreme Court in this sidewalk/curb slip and fall case, determined (1) the defendant village did not have written notice of the alleged dangerous condition. and (2), the defendant abutting property owner did create the condition or cause the condition by special use. Therefore the complaint against both defendants should have been […]

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THE AFFIDAVITS AND REAL ESTATE CONTRACT SUBMITTED IN SUPPORT OF THE MOTION TO DISMISS DID NOT CONSTITUTE DOCUMENTARY EVIDENCE WHICH UTTERLY REFUTED THE ALLEGATIONS OF UNLAWFUL DISCRIMINATION IN THE COMPLAINT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the complaint alleging unlawful discrimination in a real estate deal should not have been dismissed because the documentary evidence did not utterly refute the allegations in the complaint. After the real estate purchase offer was signed by both parties and the down payment was made, defendant’s attorney returned […]

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