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THE TOWN DID NOT OFFER PROOF THE ROAD LEADING TO PLAINTIFF’S HOME, WHICH WAS WIDENED BY THE TOWN, HAD BEEN USED BY THE PUBLIC AND MAINTAINED BY THE TOWN FOR 10 YEARS; THERFORE THE TOWN DID NOT PROVE THE ROAD WAS A PUBLIC HIGHWAY; THEREFORE PLAINTIFF’S EMINENT DOMAIN UNLAWFUL TAKING ACTION SHOULD NOT HAVE BEEN DISMISSED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant municipality’s motion for summary judgment in this eminent domain “unlawful taking” action should not have been granted. Apparently the municipality did some work which widened the road leading to plaintiff’s home. Whether the work constituted an “unlawful taking” of plaintiff’s property turned on whether the road could […]

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ALTHOUGH FAMILY COURT CAN DIRECT MOTHER TO ENGAGE IN COUNSELING, SUBMIT TO DRUG TESTS AND TAKE MEDICATION, FAMILY COURT CAN NOT MAKE THE DIRECTIVES A PREREQUISITE FOR VISITATION (FOURTH DEPT).

The Fourth Department determined Family Court did not have the authority to make mother’s compliance with drug-test, medication and counseling directives a prerequisite for visitation: … [T]he court erred in requiring the mother to participate in counseling, take her medications as prescribed, and provide proof of a negative hair follicle test prior to having therapeutic […]

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MATTER REMITTED FOR CONSIDERATION OF EXPERT EVIDENCE ABOUT WHICH ECUADORIAN STATUTE IS MOST CLOSELY ANALOGOUS TO NEW YORK’S FRAUDULENT-CONVEYANCE CRITERIA FOR PURPOSES OF NEW YORK’S BORROWING STATUTE; HERE THE ACTION ACCRUED IN ECUADOR; THE SHORTER OF THE APPLICABLE ECUADORIAN AND NEW YORK STATUTES OF LIMITATIONS WILL APPLY (FIRST DEPT).

The Frist Department, reversing Supreme Court and remitting the matter for consideration of the expert evidence, determined Supreme Court may have applied the wrong Ecuadorian statute in the analysis of the statute of limitations under the borrowing statute: Under CPLR 202, New York’s “borrowing statute,” where a nonresident plaintiff sues on causes of action that […]

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THE CORRECTION LAW REQUIRING A SEX OFFENDER TO VERIFY HIS OR HER ADDRESS EVERY NINETY DAYS IS VOID FOR VAGUENESS AS APPLIED TO HOMELESS SEX OFFENDERS (FIRST DEPT). ​

The First Department, vacating defendant’s guilty pleas, in a full-fledged opinion by Justice Renwick, determined the Correction-Law requirement that a sex offender verify his or her address every 90 days is void for vagueness as applied to homeless sex offenders: … [T]he question is whether the reporting requirements of Correction Law § 168-f(3) provided sufficient […]

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DEFENSE COUNSEL MOVED TO SUPPRESS AN UNNOTICED EYEWITNESS IDENTIFICATION OF THE DEFENDANT AFTER BEING TOLD THE IDENTIFICATION WOULD BE PRECLUDED IF HE DID NOT MOVE TO SUPPRESS; DEFENSE COUNSEL INTRODUCED DEFENDANT’S MUG SHOT DESPITE THE SUPPRESSION OF THE PHOTO ID; DEFENSE COUNSEL DID NOT OBJECT TO A DETECTIVE’S IMPROPER IDENTIFICATION OF THE DEFENDANT IN A BLURRY VIDEO; THE MOTION TO VACATE DEFENDANT’S CONVICTION ON INEFFECTIVE ASSSISTANCE GROUNDS SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant’s motion to vacate his conviction on ineffective assistance grounds should have been granted. Defense counsel moved to suppress an unnoticed eyewitness identification knowing that the evidence would have been precluded had he not moved to suppress. Defense counsel introduced the mug shot of the defendant, despite the […]

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THE JUDGE’S LAW CLERK WHEN DEFENDANT’S MOTION TO VACATE HIS CONVICTION WAS MADE WAS THE DISTRICT ATTORNEY WHEN DEFENDANT WAS INDICTED AND PROSECUTED; THE APPEARANCE OF A CONFLICT OF INTEREST REQUIRED REVERSAL AND REMITTAL; ALTHOUGH THE ISSUE WAS NOT BEFORE COUNTY COURT, THE ISSUE WAS CONSIDERED ON APPEAL IN THE INTEREST OF JUSTICE (THIRD DEPT).

The Third Department, reversing the denial of defendant’s motion to vacate his conviction, determined the fact that the judge’s law clerk was District Attorney at the time of defendant’s indictment and prosecution presented the appearance of a conflict of interest: … [T]he law clerk here does not appear to have been directly involved in defendant’s […]

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THE MAJORITY HELD THE RECORD WAS SILENT ON WHETHER THE POLICE, WHO DID NOT APPLY FOR A NO-KNOCK WARRANT, ENTERED THE APARTMENT WITHOUT PROPER NOTICE TO THE OCCUPANTS AND THE ISSUE WAS NOT PRESERVED FOR APPEAL; THE DISSENT ARGUED THE ISSUE CAN BE ADDRESSED ON APPEAL UNDER INEFFECTIVE ASSISTANCE (FAILURE TO MOVE TO SUPPRESS), THE RECORD SUPPORTED AN UNAUTHORIZED NO-KNOCK ENTRY AND THE SEIZED EVIDENCE SHOULD HAVE BEEN SUPPRESSED (THIRD DEPT).

The Third Department, over a two-justice dissent, determined the issue whether the police did not give proper notice to the occupants prior to entering and searching premises was not preserved for appeal. The two dissenters argued the issue can be addressed by the appellate court under the ineffective-assistance argument (no motion to suppress based on […]

THE BOARD’S RULING THAT CLAIMANT WAS AN EMPLOYEE OF THE DELIVERY SERVICE WAS UPHELD; THE DISSENT ARGUED THE FACTS WERE MOST SIMILAR TO ANOTHER DECISION INVOLVING THE SAME EMPLOYER WHERE THE COURT FOUND NO EMPLOYER-EMPLOYEE RELATIONSHIP (THIRD DEPT).

The Third Department, over a dissent, upheld the Unemployment Insurance Board’s ruling that claimant was an employee of the delivery service (NEL) entitled to unemployment insurance benefits: … [A]fter claimant applied to be a delivery driver, NEL conducted a screening process that included a verification of claimant’s driver’s license, a Department of Motor Vehicles background […]

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PLAINTIFF IN THIS MEDICAL MALPRACTICE ACTION SOUGHT TO ADD TWO PHYSICIAN’S ASSISTANTS (PA’S) AS DEFENDANTS AFTER THE STATUTE OF LIMITATIONS HAD RUN; PLAINTIFF DID NOT DEMONSTRATE THE DEFENDANT DOCTORS WERE THE PA’S EMPLOYERS OR SUPERVISORS; PLAINTIFF DID NOT DEMONSTRATE THE PA’S HAD TIMELY KNOWLEDGE OF THE ACTION; THEREFORE THE RELATION-BACK DOCTRINE SHOULD NOT HAVE BEEN APPLIED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined plaintiff did not demonstrate the relation-back doctrine applied such that two physician’s assistants (PA’s) could be added as defendants after the statute of limitations had expired. There was no evidence the PA’s and the doctors were united in interest and no evidence the PA’s had timely notice of […]

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DEFENDANT WAS ENTITLED TO A DOWNWARD DEPARTURE TO LEVEL ONE; THE PRIOR RAPE (THE JUSTIFICATION FOR COUNTY COURT’S LEVEL THREE DESIGNATION) STEMMED FROM AN ONGOING RELATIONSHIP WITH THE VICTIM WHO WAS UNABLE TO CONSENT SOLELY BECAUSE OF HER AGE (SECOND DEPT).

The Second Department, reversing County Court, determined defendant was entitled to a downward departure to a level one sex offender designation. County Court had designated defendant a lever three offender because of a prior rape-third conviction. The rape-third conviction was based solely on the victim’s inability to consent due to her age. The defendant and […]

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