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HERE THE CLAIMANT WAS DEEMED DISABLED BY AN OCCUPATIONAL DISEASE (CANCER) CAUSED BY EXPOSURE TO ASBESTOS; THE EMPLOYER RESPONSIBLE FOR COMPENSATION IS THE LAST EMPLOYER WHERE THE NATURE OF THE WORK EXPOSED CLAIMANT TO ASBESTOS, NOT NECESSARILY THE EMPLOYER AT THE TIME THE CANCER WAS DIAGNOSED (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board and remitting the matter, determined the Board did not use the correct criteria for determining the employer or insurer responsible to pay for claimant’s disability due to occupational disease, i.e., lung cancer caused by asbestos exposure: … [I]n determining that the carrier was on the risk for […]

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THE AMOUNT OF GENERAL MUNICIPAL LAW 207-A COMPENSATION TO WHICH RETIRED PERMANENTLY DISABLED YONKERS FIREFIGHTERS ARE ENTITLED UNTIL RETIREMENT AGE IS SUBJECT TO ARBITRATION UNDER THE COLLECTIVE BARGAINING AGREEMENT (CBA) (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge Wilson, determined the amount of General Municipal Law 207-a compensation to which retired permanently disable Yonkers firefighters are entitled until reaching retirement age is subject to arbitration under the terms of the collective bargaining agreement (CBA): If there is a “reasonable relationship between the subject […]

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RETIRED PERMANENTLY DISABLED YONKERS FIREFIGHTERS ARE ENTITLED TO HAVE HOLIDAY PAY AND CHECK-IN PAY INCLUDED IN THE AMOUNT OF COMPENSATION TO WHICH THEY ARE ENTITLED UNTIL RETIREMENT AGE; NIGHT DIFFERENTIAL PAY, HOWEVER, SHOULD NOT BE INCLUDED (CT APP). ​

​The Court of Appeals, in a full-fledged opinion by Judge Wilson, over a two-judge dissent, determined retired Yonkers firefighters (Retirees) , who are permanently disabled, are entitled to have holiday pay and check-in pay included in the amount of compensation they receive until reaching retirement age. The retired, disabled firefighters are not entitled to have […]

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WHEN A DEFENDANT MUST BE RELEASED BECAUSE HE OR SHE IS NOT CHARGED WITH A BAIL-ELIGIBLE OFFENSE, A COMPETENCY EXAMINATION MUST BE CONDUCTED AS AN OUT-PATIENT OR IN A HOSPITAL; THE DEFENDANT CANNOT BE ORDERED TO JAIL PENDING THE EXAMINATION; THE HABEAS CORPUS PETITION WAS PROPERLY GRANTED; THE APPEAL WAS HEARD AS AN EXCEPTION TO THE MOOTNESS DOCTRINE (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge Rivera, determined defendant, who was not charged with a bail-eligible offense, could not be ordered to jail for a competency examination. Defendant must either be examined as an out-patient, or, upon a recommendation of a medical official, in a hospital. The writ of habeas corpus […]

THE DEFENDANT, THINKING THAT THE PERSON TRYING TO BREAK-IN WAS HER ESTRANGED HUSBAND WHO HAD BROKEN IN AND ATTACKED HER BEFORE, FIRED A SINGLE SHOT THROUGH THE METAL DOOR, KILLING THE VICTIM (WHO WAS NOT HER ESTRANGED HUSBAND); BECAUSE HER USE OF THE WEAPON WAS DEEMED DANGEROUS AND RECKLESS, DEFENDANT WAS NOT ENTITLED TO THE TEMPORARY AND LAWFUL USE OF A WEAPON JURY INSTRUCTION (CT APP).

The Court of Appeals, reversing the appellate division, determined the defendant was not entitled to the temporary and lawful possession of a weapon jury instruction in this murder case. Defendant thought the person trying to get into her house was her estranged husband who had broken in and attacked her before. She fired one shot […]

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THE MOTION TO SET ASIDE THE VERDICT AS A MATTER OF LAW SHOULD NOT HAVE BEEN GRANTED; THE MOTION TO SET ASIDE THE VERDICT AS AGAINST THE WEIGHT OF THE EVIDENCE SHOULD HAVE BEEN GRANTED; A NEW TRIAL IS NECESSARY BECAUSE AN APPELLATE COURT CANNOT MAKE NEW FINDINGS OF FACT IN A JURY TRIAL (SECOND DEPT).

The Second Department, reversing Supreme Court in this medical malpractice case. determined the motion to set aside the verdict as a matter of law should not have been granted. but the motion to set aside the verdict as against the weight of the evidence should have been granted, explaining the difference: “‘A motion for judgment […]

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ALTHOUGH THE RAISED PORTION OF THE SIDEWALK FLAG OVER WHICH PLAINTIFF TRIPPED DID NOT ABUT DEFENDANTS’ PROPERTY SEVERAL FEET OF THE FLAG EXTENDED IN FRONT OF DEFENDANTS’ PROPERTY; THE VILLAGE CODE MANDATES THAT ABUTTING PROPERTY OWNER’S MAINTAIN SIDEWALKS IN A SAFE CONDITION; DEFENDANTS DID NOT SUBMIT ANY EVIDENCE THAT THEY MAINTAINED THE ABUTTING PORTION OF THE SIDEWALK IN A SAFE CONDITION OR THAT ANY FAILURE TO DO SO WAS NOT A PROXIMATE CAUSE OF PLAINTIFF’S FALL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant homeowners were not entitled to summary judgment in this sidewalk slip and fall case. Apparently the raised part of a sidewalk flag over which plaintiff tripped was not in front of defendants’ property, but much of that same flag abutted defendants’ property. Because the village code […]

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RESETTLEMENT OF THE JUDGMENT OF DIVORCE WAS PROPER ONLY TO THE EXTENT OF CORRECTING A MISTAKE IN THE JUDGMENT; RESETTLEMENT SHOULD NOT HAVE BEEN USED TO AMEND THE JUDGMENT (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the judgment of divorce should have been resettled to the extent that the judgment conform with the stipulation. But the judgment should not have been modified to include a provision which was not in the stipulation. Resettlement cannot be used to amend the judgment, as opposed to […]

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PLAINTIFF BANK MADE A DEFECTIVE MOTION (WHICH WAS REJECTED) FOR AN ORDER OF REFERENCE WITHIN ONE YEAR OF DEFENDANT’S DEFAULT AND DID NOT CORRECT THE ERRORS IN THE MOTION FOR TEN YEARS; THE MAJORITY HELD THE ACTION HAD NOT BEEN ABANDONED, THE JUDGE SHOULD NOT HAVE, SUA SPONTE, DISMISSED THE COMPLAINT AND THE ACTION SHOULD BE RESTORED TO THE CALENDAR (SECOND DEPT).

The Second Department, reversing Supreme Court’s sua sponte dismissal of the complaint, over an extensive dissent, determined plaintiff bank in this foreclosure action, by filing a motion for an order of reference within one year of defendant’s default, demonstrated it did not intend to abandon the action and the matter, therefore, should be restored to […]

AFTER DEFENDANT’S DEFAULT AND FOLLOWING AN INQUEST ON DAMAGES PLAINTIFF WAS AWARDED ABOUT $275,000; THE JUDGE ORDERED PLAINTIFF TO SUBMIT A NOTICE OF SETTLEMENT AND A PROPOSED JUDGMENT WITHIN 60 DAYS AS REQUIRED BY 22 NYCRR 202.48; PLANTIFF DID NOT DO SO FOR MORE THAN TWO AND A HALF YEARS; THE ORDER GRANTING THE DEFAULT JUDGMENT AND THE DECISION ON THE INQUEST WERE VACATED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the order granting a default judgment and the decision awarding nearly $275,000 must be vacated because plaintiff did not submit a notice of settlement and a proposed judgment within 60 days as required by 22 NYCRR 202.48: Pursuant to 22 NYCRR 202.48(a), “[p]roposed orders or judgments, with proof […]

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