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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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THERE WERE QUESTIONS OF FACT WHETHER DEFENDANTS IN THIS DOG-BITE CASE, INCLUDING THE LANDLORD, WERE AWARE OF THE DOG’S VICIOUS PROPENSITIES; THE PRE-DISCOVERY SUMMARY JUDGMENT MOTION WAS PREMATURE; THE ACTION WAS NOT FRIVOLOUS; THE DEFENDANTS WERE NOT ENTITLED TO ATTORNEY’S FEES (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendants in this dog-bite case were not entitled to summary judgment, the action was not frivolous, and defendants were not entitled to attorney’s fees. In addition, the summary judgment motion, made before discovery, was deemed premature. The court found there were questions of fact whether defendants, including the […]

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THE AMENDMENTS TO THE ANTI-SLAPP STATUTES SHOULD NOT HAVE BEEN APPLIED RETROACTIVELY TO DISMISS PLAINTIFF’S DEFAMATION COMPLAINT (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court, determined the amendments to the anti-SLAPP statutes (Civil Rights Law §§ 70-a, 76-a) do not apply retroactively and therefore should not have been the basis for dismissal of plaintiff’s defamation complaint: … [T]the presumption against retroactivity is not overcome because “[n]othing in the text ‘expressly or by necessary implication’ requires […]

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AT THE TIME DEFENDANT RAN AS THE POLICE APPROACHED THERE WAS NO INDICATION THE POLICE WERE GOING TO CITE DEFENDANT FOR TRESPASS OR VIOLATION OF AN OPEN-CONTAINER LAW; DEFENDANT THEREFORE COULD NOT HAVE INTENDED TO OBSTRUCT GOVERNMENTAL ADMINISTRATION BY RUNNING; DEFENDANT’S RUNNING DID NOT PROVIDE PROBABLE CAUSE TO ARREST; THE PEOPLE’S ALTERNATIVE PROBABLE CAUSE ARGUMENT (TRESPASS AND OPEN-CONTAINER VIOLATION), ALTHOUGH PRESENTED TO THE SUPPRESSION COURT, WAS NOT RULED ON AND THEREFORE COULD NOT BE CONSIDERED ON APPEAL (FOURTH DEPT).

​The Fourth Department, reversing the denial of defendant’s suppression motion, determined the police did not have probable cause to arrest defendant for obstructing governmental administration. The People’s alternative argument (the police had probable cause to arrest defendant for trespass and violation of an open-container law), made in a post-suppression-hearing memo, could not be considered on […]

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