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DEFENDANT’S FACIAL CONSTITUTIONAL CHALLENGE TO THE CONCEALED CARRY STATUTE AS IT EXISTED AT THE TIME OF HIS INDICTMENT (A PROVISION OF THE STATUTE WAS DECLARED UNCONSTITUTIONAL BY THE US SUPREME COURT JUST PRIOR TO DEFENDANT’S INDICTMENT) SURVIVED HIS WAIVER OF APPEAL; ALTHOUGH DEFENDANT NEVER APPLIED FOR A FIREMARM LICENSE, HE HAS STANDING TO CHALLENGE THE STATUTE BASED ON HIS CONVICTION FOR ATTEMPTED POSSESSION OF A WEAPON; THE CHALLENGED PORTION OF THE STATUTE IS SEVERABLE FROM THE OTHER PROVISIONS; DEFENDANT WAS UNABLE TO DEMONSTRATE THE UNCONSTITUTIONAL PROVISION RENDERED THE STATUTE UNCONSTITUTIONAL UNDER ALL CONCEIVABLE CIRCUMSTANCES AND THEREFORE DID NOT DEMONSTRATE FACIAL UNCONSTITUTIONALITY (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Halligan, over a three-judge concurrence, determined: (1) the defendant’s challenge to the facial constitutionality of the state’s firearm licensing scheme survived his waiver of appeal; (2) the defendant, who was convicted of attempted criminal possession of a weapon, has standing to challenge the state’s firearm […]

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AN INSURER CANNOT DENY PAYMENT OF AN AUTOMOBILE-ACCIDENT NO-FAULT CLAIM ON THE GROUND THE LICENSED HEALTHCARE PROVIDER COMMITTED PROFESSIONAL MISCONDUCT (HERE AN ALLEGED KICKBACK SCHEME) UNLESS THE PROVIDER HAS ABDICATED CONTROL TO AN UNLICENSED PARTY (CT APP).

The Court of Appeals, in full-fledged opinion by Judge Rivera, over an extensive dissenting opinion by Judge Wilson, determined the NYS Department of Financial Services’ (DFS’s) interpretation of a regulation addressing the payment of no-fault benefits for automobile-accident injuries was rational. The issue was whether alleged professional misconduct by a licensed healthcare provider allowed the […]

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BECAUSE THERE IS SUPPORT IN THE RECORD FOR THE LOWER COURTS’ FINDING THAT THE PROPERTY PURCHASED BY A CHURCH WAS NOT BEING USED AS A RETREAT IN VIOLATION OF THE ZONING LAWS AND THEREFORE IS TAX EXEMPT, THE COURT OF APPEALS IS CONSTRAINED TO AFFIRM; THERE WAS A THREE-JUDGE DISSENT (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Wilson, over a three-judge dissent, determined Supreme Court and the Appellate Division properly ruled that the property in Sullivan County purchased by a church in Queens was not being used in violation of the zoning laws and was tax-exempt. The factual question was whether the […]

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DEFENDANTS’ MOTION TO AMEND THEIR COUNTERCLAIM FOR DEFAMATION, DEFAMATION PER SE AND DEFAMATION BY IMPLICATION SHOULD HAVE BEEN GRANTED; CRITERIA EXPLAINED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendants’ cross-motion to amend the counterclaim for defamation should been granted. The allegations of defamation, defamation per se and defamation by implication were deemed sufficient. The decision is fact specific and cannot be fairly summarized here. The plaintiff and defendants, licensed investment advisors, entered an employment arrangement which […]

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IN DETERMINING WHETHER THE PEOPLE’S CERTIFICATE OF COMPLIANCE WITH THEIR DISCOVERY OBLIGATIONS WAS VALID THE MOTION COURT RULED THE PEOPLE HAD ACTED IN GOOD FAITH; THE MATTER WAS REMITTED FOR THE APPLICATION OF THE CORRECT STANDARD: WHETHER THE PEOPLE ACTED WITH DUE DILIGENCE AND MADE REASONABLE EFFORTS TO SATISFIY THEIR OBLIGATIONS (FOURTH DEPT).

The Fourth Department remitted the matter for a new determination whether the People’s certificate of compliance (COC) with their discovery obligations was valid. The motion judge held the People “acted in good faith.” The appropriate inquiry is whether the People exercised due diligence and made reasonable efforts to satisfy their obligations: … [T]he court erred […]

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DEFENDANT MOVED TO SUPPRESS THE WEAPON SEIZED FROM DEFENDANT’S VEHICLE AFTER A TRAFFIC STOP ON THE GROUND THERE WAS NO PROBABLE CAUSE FOR THE STOP; THE POLICE CLAIMED THE REASON FOR THE STOP WAS DEFENDANT’S FAILURE TO WEAR A SEATBELT; SURVEILLANCE VIDEOS WHICH WOULD HAVE SHOWN WHETHER DEFENDANT WAS WEARING A SEARBELT WERE NOT PRESERVED; DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO REQUEST AN ADVERSE INFERENCE CHARGE IN CONNECTION WITH THE SUPPRESSION MOTION; MATTER REMITTED (FOURTH DEPT).

The Fourth Department, remitting the matter for legal argument and, if defendant so requests, reopening of the suppression hearing, determined defendant did not receive effective assistance of counsel. Surveillance videos which would have shown whether defendant was not wearing a seatbelt (the claimed probable cause for the stop) were not preserved. Defendant moved to suppress […]

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IN THIS DRAM SHOP ACT CASE, DEFENDANT BAR DID NOT DEMONSTRATE DEFENDANT DRIVER WAS NOT VISIBLY INTOXICATED WHEN SERVED AND THEREFORE DID NOT MEET ITS INITIAL BURDEN FOR ITS SUMMARY JUDGMENT MOTION; A TWO-JUSTICE DISSENT ARGUED DEFENDANT BAR MET ITS INITIAL BURDEN, THUS SHIFITNG THE BURDEN TO THE PLANTIFF (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, determined, in this Dram Shop Act case, defendant bar did not demonstrate defendant driver was not visibly intoxicated when served alcohol. The dissenters argued the bar met its initial burden on its motion for summary judgment: In support of the motion, defendant submitted evidence that, throughout the evening […]

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HERE THE JUDGE DID NOT HAVE THE AUTHORITY TO SUMMARILY MAKE A SEVERE ABUSE FINDING AND TERMINATE RESPONDENTS’ PARENTAL RIGHTS BASED UPON A PRIOR ABUSE HEARING; SEVERE ABUSE WAS NOT ALLEGED IN THE PRIOR HEARING; A SEVERE ABUSE FINDING MUST BE BASED ON A “CLEAR AND CONVINCING” STANDARD, NOT THE “PREPONDERANCE OF EVIDENCE” STANDARD APPLIED IN THE PRIOR HEARING; IN ADDITION, THE JUDGE SHOULD NOT HAVE ISSUED AN ORDER OF DISPOSITION WITHOUT HOLDING A DISPOSITIONAL HEARING; MATTER REMITTED (FOURTH DEPT).

The Fourth Department, reversing Family Court’s “severe abuse” finding and the consequent termination of parental rights, determined it was error to make these rulings based upon a prior abuse hearing because “severe abuse” was not alleged in that hearing. In addition, a finding of “severe abuse” must be based on “clear and convincing evidence,” not […]

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THE MOTION COURT PROPERLY ISSUED A PROTECTIVE ORDER REQUIRING PLAINTIFF’S COUNSEL IN THIS MED MAL CASE TO RESCIND THE CORRESPONDENCE SENT TO PLAINTIFF’S TREATMENT PROVIDERS WHICH DISCOURAGED THEM FROM SPEAKING WITH DEFENSE COUNSEL; THE DISSENT ARGUED THE MAJORITY WAS IMPROPERLY ISSUING AN ADVISORY OPINION (FOURTH DEPT).

The Fourth Department, over a dissent which argued the majority was improperly issuing an advisory opinion, determined the trial judge in this medical malpractice action properly ordered plaintiff’s counsel rescind correspondence sent to treatment providers which discouraged the treatment providers from speaking with defense counsel. The correspondence accompanied the “Arons” speaking authorizations executed by the […]

DEFENDANT WAS CONVICTED OF ASSAULT ON A PEACE OFFICER AND ASSAULT SECOND; THE ASSAULT SECOND CONVICTION WAS REVERSED BECAUSE (1) ASSAULT SECOND IS AN INCLUSORY CONCURRENT COUNT OF ASSAULT ON A PEACE OFFICER, AND (2) ASSAULT SECOND IS A LESSER INCLUDED OFFENSE OF ASSAULT ON A PEACE OFFICER (FOURTH DEPT).

The Fourth Department reversed the assault second conviction because assault second is an inclusory concurrent count of assault on a peace officer: … [T]he conviction of assault in the second degree cannot stand. … [T]his Court has previously determined that assault in the second degree “is an inclusory concurrent count of assault on a [peace] […]

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