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PLAINTIFF WAS PRESCRIBED ATIVAN, WHICH CAUSES DROWSINESS, IN THE EMERGENCY ROOM, WAS DISCHARGED WHILE UNDER ITS INFLUENCE AND WAS INVOLVED IN A CAR ACCIDENT; THE MEDICAL MALPRACTICE CAUSES OF ACTION BASED ON THE ALLEGEDLY NEGLIGENT DISCHARGE AND THE ALLEGED FAILURE TO EXPLAIN THE EFFECTS OF ATIVAN BOTH SOUNDED IN MEDICAL MALPRACTICE AND PROPERLY SURVIVED SUMMARY JUDGMENT (FOURTH DEPT).

​The Fourth Department determined defendants’ motion for summary judgment in this medical malpractice action was properly denied. Plaintiff was treated at the emergency department of defendant hospital and prescribed Ativan, a drug which causes drowsiness. Plaintiff was released while under the influence of the drug and had a car accident. Plaintiff alleged he was negligently […]

PLAINTIFF PULLED A LOAD OF WASTE BACKWARDS THROUGH AN ACCESS DOOR APPARENTLY EXPECTING THE LIFT TO BE POSITIONED OUTSIDE THE DOOR; THE LIFT HAD MOVED TO A DIFFERENT FLOOR AND PLAINTIFF FELL FROM THE THIRD FLOOR TO THE GROUND; THE ACCESS DOOR WAS SUPPOSED TO BE LOCKED BEFORE THE LIFT MOVED TO A DIFFERENT FLOOR; PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION BECAUSE THE ACCESS DOOR LOCK, A SAFETY DEVICE, WAS MISSING (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on his Labor Law 240(1) cause of action. Plaintiff pulled a load of waste backwards through an access door which did not have a lock and then fell from the third floor because the lift which he (apparently) assumed was positioned outside […]

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THE LEASE REQUIRED THE OUT-OF-POSSESSION LANDLORD TO REPAIR STRUCTURAL DEFECTS IN THE ROOF AND WALLS; THERE WAS A QUESTION OF FACT WHETHER WATER ENTERED THE PREMISES THROUGH DEFECTS IN THE ROOF AND WALLS CAUSING THE ALLEGED DANGEROUS CONDITION, A CRACK IN THE FLOOR WHICH ALLEGEDLY CONTRIBUTED TO PLAINTIFF’S INJURY (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, determined the out-of-possession landlord was required under the terms of the lease to repair structural defects in the roof and walls and there was a question of fact whether such defects caused a crack in the floor. The cracked floor was alleged to constitute a dangerous condition which […]

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THE CONDEMNATION OF THE REAL PROPERTY WAS NOT FOR A COMMERCIAL PURPOSE AS REQUIRED BY THE CONTROLLING STATUTES; THE DETERMINATION TO CONDEMN THE PROPERTY WAS ANNULLED OVER AN EXTENSIVE DISSENT (FOURTH DEPT).

The Fourth Department, annulling the determination to condemn real property, over an extensive dissent, held that the purpose for the condemnation was not “commercial” as required by the statutes authorizing condemnation by the Oneida County Industrial Development Agency (OCIDA): Petitioners commenced this original proceeding pursuant to EDPL [Eminent Domain Procedure Law] 207 seeking to annul […]

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PHONE CALLS TO THE PROTECTED PERSON SUPPORTED CRIMINAL CONTEMPT SECOND DEGREE BUT NOT CRIMINAL CONTEMPT FIRST DEGREE (FOURTH DEPT).

The Fourth Department determined phone calls, as opposed to “contact with the protected person,” did not support the contempt first degree convictions. However the phone calls did support contempt second degree: The … five counts of criminal contempt in the first degree … are based on evidence establishing that an order of protection had been […]

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THE AMENDED STATUTE CHANGING THE CRITERIA FOR NEGLECT BASED ON MARIHUANA USE WENT INTO EFFECT TWO DAYS BEFORE THE HEARING AND WAS NOT APPLIED TO THE FACTS; MATTER REMITTED (FOURTH DEPT).

The Fourth Department, modifying Family Court, determined whether mother neglected the children within the meaning of the statute as amended by the Marihuana Regulation and Taxation Act required remittal: “The Marihuana Regulation and Taxation Act …  amended Family [Court] Act § 1046 (a) (iii) … by specifically foreclosing a prima facie neglect finding based solely […]

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UPON REMITTITUR FROM THE COURT OF APPEALS, THE APPELLATE DIVISION AGAIN FOUND THE SEVEN-YEAR PREINDICTMENT DELAY DID NOT DEPRIVE DEFENDANT OF DUE PROCESS OF LAW (FOURTH DEPT).

The Fourth Department, upon remittal from the Court of Appeals, determined defendant was not deprived of his right to due process by the seven-year preindictment delay. The Fourth Department had reached that same conclusion before the matter was heard by the Court of Appeals. The Court of Appeals sent the matter back because it found […]

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THE MOTION COURT ABUSED ITS DISCRETION BY DEEMING PLAINTIFF’S STATEMENT OF MATERIAL FACTS ADMITTED BECAUSE DEFENDANTS DID NOT SUBMIT A COUNTER STATEMENT OF UNDISPUTED FACTS (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court, determined that defendants’ failure to submit a counter statement of undisputed facts (22 NYCRR 202.8-g[b]) should not have been deemed an admission to plaintiff’s statement of material facts. Therefore plaintiff’s motion for summary judgment on the breach of contract cause of action should not have been granted: Although the court […]

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THE PEOPLE DID NOT DEMONSTRATE THE POLICE OFFICER HAD SUFFICIENT TRAINING AND EXPERIENCE TO VISUALLY ESTIMATE THE SPEED OF DEFENDANT’S CAR; SUPPRESSION SHOULD HAVE BEEN GRANTED IN THIS SPEEDING CASE (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction, determined the People did not demonstrate the defendant was speeding. No radar gun was used and the officer estimated defendant’s speed. The People did not demonstrate the officer had sufficient training and experience to support the speed-estimate: At the suppression hearing, the officer testified that he stopped the vehicle […]

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AT THE TIME THE POLICE PARKED THE POLICE CAR BEHIND THE CAR IN WHICH DEFENDANT WAS A PASSENGER SUCH THAT THE DRIVER COULD NOT LEAVE THE AREA, THE POLICE DID NOT HAVE REASONABLE SUSPICION THAT THE OCCUPANTS OF THE CAR HAD COMMITTED A CRIME; DEFENDANT’S MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED; INDICTMENT DISMISSED (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction and dismissing the indictment, determined the police did not have the requisite reasonable suspicion when they parked behind the vehicle in which defendant was a passenger such that the driver could not leave the area. Therefore defendant’s motion to suppress should have been granted: Police officer testimony at the […]

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