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DEFENDANT’S TESTIMONY ABOUT HIS FELONY CONVICTIONS DID NOT OPEN THE DOOR TO A MODIFICATION OF THE COURT’S SANDOVAL RULING TO ALLOW QUESTIONING ABOUT THE FACTS UNDERLYING THE CONVICTIONS; CONVICTION REVERSED (FIRST DEPT). ​

The First Department, reversing defendant’s conviction, determined the court should not have modified its original Sandoval ruling. The initial Sandoval ruling allowed defendant to be questioned about the number of felony conviction on his record but not about any of the underlying facts. When defendant was on the stand the court allowed the prosecutor to […]

PETITIONER POLICE OFFICER’S SLIP AND FALL WHEN LEAVING A BATHROOM MET THE DEFINITION OF AN “ACCIDENT” IN THE RETIREMENT AND SOCIAL SECURITY LAW; SHE WAS THEREFORE ENTITLED TO ACCIDENTAL DISABILITY RETIREMENT BENEFITS (THIRD DEPT).

The Third Department, annulling the comptroller’s ruling, determined the police officer’s slip and fall was an accident within the meaning of the Retirement and Social Security Law entitling her to accidental disability retirement benefits: Petitioner’s slip and fall while exiting the bathroom was sudden and unexpected, and the precipitating event was not a risk of […]

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BOTH PARENTS OPPOSED VISITATION WITH THE GRANDPARENTS AND THERE WAS EVIDENCE VISITATION WITH THE GRANDPARENTS HAD NEGATIVE EFFECTS ON ONE OF THE CHILDREN; IT WAS NOT DEMONSTRATED THAT VISITATION WITH THE GRANDPARENTS WAS IN THE CHILDREN’S BEST INTERESTS; MATTER REMITTED FOR A NEW HEARING BEFORE A DIFFERENT JUDGE (THIRD DEPT). ​

The Third Department, reversing Family Court, determined Family Court’s ruling allowing visitation by the grandparents, which was opposed by both parents, was not demonstrated to be in the best interests of the children. The son is autistic and has frequent “meltdowns” which the grandparents allegedly didn’t handle appropriately. The matter was sent back for a […]

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IN THIS COMPLEX CASE INVOLVING ALLEGED MISUSE OF LAND GIFTED TO THE AUDUBON SOCIETY AS “FOREVER WILD” AND SUBSEQUENTLY SOLD, THE ATTORNEY GENERAL’S ARGUMENT THE DEED WAS VOID AB INITIO AND THEREFORE NEVER TRIGGERD THE STATUTE OF LIMITATIONS WAS REJECTED; THE DEED WAS DEEMED “VOIDABLE” AND THE STATUTE HAD THEREFORE RUN; THE TWO-JUSTICE DISSENT ARGUED THE MAJORITY SHOULD NOT HAVE SENT THE MATTER BACK TO BE HEARD BY A DIFFERENT JUDGE (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Garry, determined the deed which was the subject of the action was not void ab initio, but rather was voidable, such that the statute of limitations had run on the action. Had the deed been void ab initio, the statute of limitations would not have run. […]

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THE RECORD DOES NOT REFLECT THE MEASURES TAKEN BY THE HEARING OFFICER TO DETERMINE THE BODY CAMERA FOOTAGE REQUESTED BY THE PETITIONER DID NOT EXIST; DETERMINATION ANNULLED AND NEW HEARING ORDERED (THIRD DEPT).

​The Third Department, annulling the misbehavior determination, held that petitioner-inmate’s request for body camera footage was improperly denied: We … find merit to petitioner’s contention that his request for body camera footage was improperly denied. Upon petitioner’s request for such footage at the hearing, the Hearing Officer responded that the correction officer’s body camera was […]

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THE INSURANCE POLICY EXCLUDED COVERAGE FOR BODILY INJURY INTENDED OR EXPECTED BY THE INSURED; HERE THE INSURED UNINTENTIONALLY STRUCK COLE, WHO WAS ATTEMPTING TO BREAK UP A FIGHT BETWEEN THE INSURED AND A THIRD PERSON; BECAUSE THE INJURY TO COLE WAS UNINTENDED, THE INSURER WAS REQUIRED TO DEFEND THE INSURED IN COLE’S PERSONAL INJURY ACTION AGAINST THE INSURED (THIRD DEPT). ​

The Third Department determined plaintiff insurer was required, under the terms of the policy, to defend the insured, LePore, in the personal injury action by Cole against LePore. LePore was fighting with another and Cole was injured attempting to break it up. The policy excluded coverage for bodily injury intended or expected by the insured. […]

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BEFORE SENTENCING DEFENDANT AS A SECOND VIOLENT FELONY OFFENDER, THE COURT DID NOT MAKE A FINDING WHETHER THE TEN-YEAR LOOK-BACK FOR ANY PREDICATE VIOLENT FELONY WAS TOLLED BY A PERIOD OF INCARCERATION; THE ISSUE SURVIVES A WAIVER OF APPEAL AND WAS PROPERLY RAISED FOR THE FIRST TIME ON APPEAL; MATTER REMITTED FOR RESENTENCING (THIRD DEPT). ​

The Third Department, remitting the matter for resentencing, determined the court did not make a finding about whether the 10-year look-back for a predicate violent felony was tolled by periods of incarceration. The issue survives a waiver of appeal and, because the issue is clear from the record, was properly raised for the first time […]

IN THIS SLIP AND FALL CASE, DEFENDANT DID NOT DEMONSTRATE THE FOUR-AND-ONE-HALF-INCH RISER AT THE ENTRANCE TO A SHOWER WAS OPEN AND OBVIOUS AS A MATTER OF LAW (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the 4 1/2 inch riser at the entrance to a shower, over which plaintiff tripped and fell, was open and obvious as a matter of law: … [T]he plaintiff allegedly tripped and fell on a tiled single-step riser while entering a shower stall in the locker room at […]

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PLAINTIFF NURSING HOME CAN BRING A PLENARY ACTION TO DETERMINE A RESIDENT’S MEDICAID ELIGIBILITY WITHOUT BEING BOUND BY THE RESIDENT’S FAILURE TO REQUEST AN ADMINISTRATIVE APPEAL OR THE FOUR-MONTH STATUTE OF LIMITATIONS (SECOND DEPT).

The Second Department, reversing Supreme Court, held plaintiff nursing home can bring a plenary action in its own right to determined the Medicaid eligibility of a resident. The nursing home is not bound by the resident’s failure to request an administrative appeal and is not constrained the the four-month statute of limitations in CPLR 217: […]

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THE BANK IN THIS FORECLOSURE ACTION DID NOT DEMONSTRATE COMPLIANCE WITH THE MAILING REQUIREMENTS OF RPAPL 1304 OR THE NOTICE REQUIREMENTS OF RPAPL 1303 (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined plaintiff in this foreclosure action did not demonstrate compliance with the notice (mailing) requirements of RPAPL 1304 or the notice requirements of RPAPL 1303: … [T]he letter log submitted by the plaintiff and relied upon by the employee of the plaintiff’s alleged loan servicer in his affidavit […]

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