The Fourth Department determined defendant’s waiver of appeal was invalid: … [D]efendant’s waiver of the right to appeal is invalid because County Court’s oral colloquy mischaracterized it as an “absolute bar” to the taking of an appeal … . … Furthermore, the written waiver executed by defendant did not contain any clarifying language to correct […]
The Fourth Department, reversing Supreme Court in this sidewalk slip and fall case, determined the defendant city demonstrated it did not have written notice of the sidewalk defect and rejected the allegation that the city had verbal notice that may have been reduced to writing: … [P]laintiff and the cross-claim defendants never contested the City’s […]
The Fourth Department, reversing (modifying) Supreme Court, determined the subcontractor (Frey) did not submit sufficient proof of damages caused by construction delays: … [W]here a subcontractor is claiming delay damages, the subcontractor “must establish the extent to which its costs were increased by the improper acts because its recovery will be limited to damages actually […]
The Fourth Department, reversing Supreme Court, noting a split among the appellate-division departments, determined an oral stipulation was invalid pursuant to Domestic Relations Law 236(B)(3): … [T]he parties’ oral stipulation is not enforceable because, although it was entered in open court, it was not reduced to writing, subscribed, or acknowledged by the parties, as required […]
The Fourth Department, reversing (modifying) Supreme Court, determined the stigma-plus 42 USC 1983 cause of action and the defamation cause of action should have been dismissed. The action was brought by plaintiff, a school football coach, based upon a letter circulated by the school district accusing plaintiff of disregarding COVID precautions and recklessly exposing students […]
The Fourth Department, reversing Supreme Court, over a two-justice dissent, determined there was a question of fact whether defendant police officer acted with reckless disregard for the safety of others in this emergency-vehicle traffic accident case. Defendant police officer was responding to a call concerning a burglar alarm and was driving without emergency lights at […]
The Fourth Department, over a dissent, confirmed the taking by eminent domain of petitioner’s property, a decommissioned coal-fired electric generating station and water intake structures on the Niagara River. Petitioner had been allowing businesses to use the water intake structures for access to inexpensive raw water. The dissent argued the town should not be able to […]
The Fourth Department, reversing Supreme Court, determined plaintiff’s decedent’s primary care physician (PCP) did not prove whether or when the decedent was informed of the foreign object (a sponge) which was left in decedent’s pelvis after surgery. The PCP’s affidavit relied on custom or habit evidence, which was not sufficient. Therefore defendants did not prove […]
The First Department, reversing Supreme Court, determined the Local Law which disqualified candidates who have certain felony convictions from running for city council and other officers should not have been interpreted to apply only to convictions after the enactment of the Local Law. Given the importance of the law, the proceeding should not have been […]
The Third Department, over a two-justice partial dissent, determined the defendant insurance company’s motion for summary judgment enforcing the nonsolicitation agreements were properly granted. Nine of defendant’s former customers followed plaintiffs after their termination from defendant’s employ: … “[T]he application of the test of reasonableness of employee restrictive covenants focuses on the particular facts and circumstances […]
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