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THE POLICE OFFICER’S TESTIMONY ABOUT HOW THE DEFENDANT’S DAUGHTER, WHO DID NOT TESTIFY AT THE TRIAL, DESCRIBED THE ALLEGED STABBING WAS INADMISSBILE TESTIMONIAL HEARSAY; NEW TRIAL ORDERED (SECOND DEPT). ​

The Second Department, reversing defendant’s assault conviction, over a dissent, determined the police officer’s (Costello’s) testimony about the defendant’s daughter’s explanation of the alleged stabbing, which included a reinactment, was testimonial hearsay and should not have been admitted. The defendant’s daughter did not testify at the trial. In addition, the defendant’s son’s statement to the […]

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ALTHOUGH DEFENDANT-WIFE’S ATTORNEY IN THIS DIVORCE ACTION MISSED A COUPLE OF THE 60-DAY BILLING PERIODS, THE ATTORNEY WAS IN SUBSTANTIAL COMPLIANCE WITH 22 NYCRR 1400.3(9) AND THE WIFE’S REQUEST FOR ATTORNEY’S FEES SHOULD NOT HAVE BEEN DENIED; $135,315.90 AWARDED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined defendant-wife’s attorney was in substantial compliance with the billing requirements of 22 NYCRR 1400.3(9) and the wife’s request for attorney’s fess in this divorce action should not have been denied: … [T]he defendant’s attorney was in substantial compliance with 22 NYCRR 1400.3(9) … . Although the attorney for […]

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​ BY THE TERMS OF HIS LEASE, PLAINTIFF WAS RESPONSIBLE FOR SNOW AND ICE REMOVAL IN THIS SLIP AND FALL CASE; THE OUT–OF-POSSESSION LANDLORDS WERE NOT RESPONSIBLE AND THEIR MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

​The Second Department, reversing Supreme Court, determined defendants-out-of-possession landlords were not responsible for snow and ice removal in the area where plaintiff slipped and fell, In fact, plaintiff, by the terms of his lease, was responsible for the snow and ice removal: … [T]he defendants demonstrated, prima facie, that they were out-of-possession landlords who were not […]

INSTALLING A TV ON A WALL IS NOT AN ACTIVITY COVERED BY LABOR LAW 240(1) (SECOND DEPT).

​The Second Department, reversing Supreme Court, determined defendants’ motions for summary judgment dismissing the Labor law 240(1) cause of action should have been granted. Plaintiff fell from an A-frame ladder while attempting to install a television on a wall in a doctor’s office: Labor Law § 240(1) states that all contractors, owners, and their agents […]

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ALTHOUGH DEFENDANT WAS PROCEEDING THROUGH AN INTERSECTION WHEN THE CAR IN WHICH PLAINTIFF WAS A PASSENGER ATTEMPTED A LEFT TURN, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED; THE POLICE REPORT, PHOTOS AND DASHBOARD VIDEO WERE INADMISSIBLE AND DEFENDANT’S AFFIDAVIT DID NOT DEMONSTRATE HE WAS FREE FROM FAULT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant (Wen Xu) in this intersection traffic accident case should not have been granted summary judgment. The defendant was apparently proceeding through the intersection when the driver of the car in which plaintiff was a passenger was attempting to make a left turn. The uncertified police report, […]

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ALTHOUGH THE PEOPLE PRESENTED EVIDENCE OF THE SHOWUP IDENTIFICATION AT THE SUPPRESSION HEARING, THEY DID NOT PRESENT ANY EVIDENCE OF THE INITIAL STOP OF THE DEFENDANT; THE PEOPLE DID NOT MEET THEIR BURDEN TO SHOW THE LEGALITY OF THE POLICE CONDUCT; SUPPRESSION SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing defendant’s conviction by guilty plea, determined the People did not present sufficient evidence at the suppression hearing and suppression of the seized evidence and statements should have been granted. Defendant was accused of a knifepoint robbery of a gas station and was identified in a showup procedure. At the suppression hearing, […]

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THE EMERGENCY DOCTRINE IS NOT APPLICABLE IN THIS TRAFFIC ACCIDENT CASE BECAUSE THE EMERGENCY (A WATER BOTTLE UNDER THE ACCELERATOR) WAS OF THE DEFENDANT’S OWN MAKING; THE GROSS NEGLIGENCE CAUSE OF ACTION AND THE DEMAND FOR PUNITIVE DAMAGES SURVIVED SUMMARY JUDGMENT; PUNITIVE DAMAGES ARE NOT AVAILABLE AGAINST DEFENDANT DRIVER’S EMPLOYER (FOURTH DEPT).

​The Fourth Department determined: (1) the emergency doctrine did not apply in this traffic accident case because the defendant driver caused the water bottle to fall from the cup holder where it lodged under the accelerator; (2) the cause of action alleging gross negligence and seeking punitive damages properly survived summary judgment; and (3) punitive […]

THE COMPLAINT DID NOT STATE A CAUSE OF ACTION FOR PRIMA FACIE TORT BECAUSE IT DID NOT ALLEGE THE SOLE MOTIVATION OF DEFENDANTS WAS DISINETERESTED MALEVOLENCE (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court, determined the complaint did not state a cause of action for prima facie tort: “The requisite elements of a cause of action for prima facie tort are (1) the intentional infliction of harm, (2) which results in special damages, (3) without any excuse or justification, (4) by an act […]

AN UNRESTRICTED EASEMENT ALLOWING ACCESS TO A LAKE ENCOMPASSES THE RIGHT TO INSTALL, MAINTAIN AND USE A DOCK (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court, determined that an unrestricted easement which allows access to a lake encompasses the right to installation, maintenance and use of a dock: … [T]he relevant deeds … established that there were no restrictions on the easement and that the purpose of the right-of-way was to provide ingress to and […]

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SUPPRESSION OF THE WEAPON WAS PROPERLY DENIED, BUT DEFENDANT’S STATEMENT ADMITTING POSSESSION OF THE WEAPON SHOULD HAVE BEEN SUPPRESSED; ALTHOUGH THE HARMLESS ERROR DOCTRINE IS RARELY APPLIED TO UPHOLD A GUILTY PLEA WHERE SUPPRSSION SHOULD HAVE BEEN GRANTED, HERE THE APPELLATE DIVISION DETERMINED THE PLEA WOULD NOT HAVE BEEN AFFECTED BY SUPPRESSION OF THE STATEMENT; THE DISSENT DISAGREED (FOURTH DEPT). ​

The Fourth Department, over a dissent, determined defendant’s guilty plea to possession of a weapon could not have been affected by the failure to suppress his statement admitting possession of the weapon. The Fourth Department determined the statement was a product of unwarned custodial interrogation: ‘The term “interrogation” under Miranda refers not only to express […]

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