The First Department, vacating defendant’s conviction by guilty plea, determined that because defendant, a juvenile, cannot be held criminally responsible for the crime to which he pled guilty, the conviction must be vacated rather than sent to Family Court: The People are correct that where a juvenile is charged with a crime for which he […]
The First Department noted that a dismissal for failure to state a claim is not on the merits and therefore does not have res judicata effect: To the extent defendants rely on the doctrine of res judicata, this reliance is misplaced because a dismissal under CPLR 3211(a)(7) for failure to state a claim is not […]
The First Department, reversing Supreme Court, in a full-fledged opinion by Justice Friedman, determined defendant landlord’s motion to dismiss the complaint alleging a fraudulent scheme to deregulate apartments should have been granted. The court found that the plaintiffs did not demonstrate the “reliance” element of fraud: The primary question on this appeal is whether plaintiffs, […]
The First Department, reversing Supreme Court, noted that the absence of a certificate of conformity for an out-of-state affidavit of service did not prevent the court from considering the affidavit in this dispute about the legitimacy of service of process in Nevada: Ameritek’s [defendant’s] argument that the lack of a certificate of conformity prevents the […]
The First Department, reversing Supreme Court, determined plaintiff’s action for a money judgment should not have been dismissed as abandoned and time-barred. In 2011 plaintiff withdrew its motion for summary judgment in lieu of complaint, without prejudice, and continued settlement negotiations for years, demonstrating plaintiff did not intend to abandon the lawsuit: Supreme Court incorrectly […]
The Third Department determined the second degree murder counts must be dismissed as inclusory concurrent counts of defendant’s murder first degree convictions: … [W]e agree with defendant’s contention that his convictions for second degree murder (counts 2 and 3) must be dismissed as inclusory concurrent counts of his convictions for murder in the first degree […]
The First Department, reversing Supreme Court, determined the plaintiff insurer was entitled to summary judgment for a declaratory judgment of noncoverage because the defendants did not appear at the scheduled Examinations Under Oath (EUOs): Plaintiff insurer seeks a declaratory judgment of noncoverage based, among other things, on its allegations that defendants Munoz, Cameron, and Santiago […]
The Third Department, reversing defendant’s criminal mischief conviction, determined the underlying statute includes an exception which must be affirmatively pleaded. The exception was not affirmatively pleaded in the Superior Court Information (SCI): “In order to determine whether a statute defining a crime contains an exception that must be affirmatively pleaded as an element in the […]
The First Department, reversing Supreme court, determined: (1) the summary judgment motion should have been supported by plaintiff’s affidavit, not the attorney’s affidavit; (2) papers submitted in reply cannot be used to remedy deficiencies in the original submission; and (3), to demonstrate a fraudulent scheme to deregulate an apartment, it is not enough to show […]
The Third Department, in a full-fledged opinion by Justice Pritzker, over a dissent, determined petitioner police officer was not entitled to accidental disability benefits for injuries incurred at his desk when he prevented himself from falling over backwards in his chair. When he attempted to roll the chair backwards it caught in a rut and […]
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