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THE TRIAL JUDGE PROPERLY HANDLED A JUROR’S CLAIM THAT OTHER JURORS HAD EXHIBITED RACIAL BIAS DURING DELIBERATIONS AND PROPERLY DENIED THE DEFENSE REQUEST FOR A MISTRIAL; THERE WAS A COMPREHENSIVE DISSENT (CT APP).

The Court of Appeals, in a full-fledged opinion by Justice Garcia, affirming the Appellate Division, over an extensive dissent, determined the trial judge properly assessed a juror’s claim that jurors exhibited racial bias during deliberations and properly denied defense counsel’s motion for a mistrial: On appeal, the Appellate Division held that the trial judge did […]

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PLAINTIFF WIRED $300,000 TO AN ACCOUNT IN DEFENDANT BANK WHICH HAD BEEN SET UP BY A FRAUDSTER TO DEFRAUD PLAINTIFF; PLAINTIFF FAILED TO PLEAD A SPECIAL RELATIONSHIP WITH DEFENDANT BANK WHICH IS REQUIRED BEFORE A DUTY (OWED TO PLAINTIFF) TO ENFORCE ITS ANTI-FRAUD PROCEDURES ARISES; THE COMPLAINT THEREFORE SHOULD HAVE BEEN DISMISSED (CT APP).

The Court of Appeals, in a one-sentence memorandum decision which adopted the reasoning of the Second Department dissent by Justice Higgitt, reversed the Second Department’s ruling that the complaint adequately pled a special relationship between the bank and plaintiff and held that the bank’s motion to dismiss the complaint should have been granted. There must […]

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THE FORECLOSURE ABUSE PREVENTION ACT (FAPA) WAS PROPERLY APPLIED RETROACTIVELY IN THIS CASE; RETROACTIVE APPLICATION DOES NOT VIOLATE THE DUE PROCESS OR CONTRACT CLAUSES OF THE UNITED STATES CONSTITUTION (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Singas, determined the Foreclosure Prevention Abuse Act applied retroactively to the case before it. Retroactive application does not violate the Due Process or Contract Clauses of the United States Constitution: We therefore hold that the provisions apply retroactively. Accordingly, because “a final judgment of foreclosure […]

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IN ANSWERING TWO CERTIFIED QUESTIONS FROM THE SECOND CIRCUIT, THE COURT OF APPEALS HELD THAT THE FORECLOSURE ABUSE PREVENTION ACT (FAPA) APPLIED RETROACTIVELY AND DID NOT VIOLATE SUBSTANTIVE OR PROCEDURAL DUE PROCESS UNDER THE NEW YORK CONSTITUTION (CT APP)

The Court of Appeals, in a full-fledged opinion by Judge Wilson, answering two certified questions from the Second Circuit, determined (1) the Foreclosure Abuse Prevention Act (FAPA) took effect immediately upon enactment and applied to all foreclosure actions in which a final judgment of foreclosure has not been enforced, and (2), retroactive application of the […]

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HERE THE MISDEMEANOR COMPLAINT DID NOT INCLUDE FACTUAL ALLEGATIONS SUPPORTING ONE OF THE COUNTS; THEREFORE THE PEOPLE’S CERTIFICATION OF COMPLIANCE WITH CPL 30.30 (5-A) WAS INACCURATE; THE INACCURACY REQUIRED THE DISMISSAL OF THE COUNT, NOT THE INVALIDATION THE PEOPLE’S CORRESPONDING CPL 245.20 STATEMENT OF READINESS (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Cannataro, over a two-judge dissent, determined that if the People’s CPL 30.30 (5-a) certification is inaccurate because the misdemeanor complaint did not include facts supporting one of the counts, the appropriate remedy is dismissal of the defective count, not the invalidation of the People’s statement […]

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THE APPROPRIATE TEST FOR WHETHER THE POLICE HAD “REASONABLE SUSPICION” SUFFICIENT FOR A TRAFFIC STOP BASED ON AN ANONYMOUS TIP IS THE “TOTALITY OF THE CIRCUMSTANCES;” THE CRITERIA INCLUDE THE AGUILAR-SPINELLI RELIABILITY AND BASIS OF KNOWLEDGE FACTORS (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Cannataro, over a two-judge dissent, applied the “totality of the circumstances” test and determined the police had probable cause to stop defendant’s car based upon an anonymous tip. The anonymous 911 caller told the dispatcher he was calling from a specified intersection and he had […]

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INDIGENT PARTIES WHO ARE ASSIGNED COUNSEL IN FAMILY COURT PROCEEDINGS HAVE A RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL; HERE IN THESE PERMANENT-NEGLECT/TERMINATION-OF-PARENTAL-RIGHTS PROCEEDINGS, THE MAJORITY CONCLUDED MOTHER DID NOT RECEIVE EFFECTIVE ASSISTANCE; THERE WAS A THREE-JUDGE DISSENT (CT APP). ​

The Court of Appeals, reversing the Appellate Division, over a two-judge dissent, determined mother had a right to, but did not receive, effective assistance of counsel in the permanent neglect proceeding in Family Court. Assigned counsel did not speak to mother until after the fact-finding hearing had begun, was unprepared, and did not request an […]

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DEFENDANTS DID NOT PRODUCE A SURVEILLANCE VIDEO DEPICTING PLAINTIFF’S ACCIDENT UNTIL AFTER PLAINTIFF’S DEPOSITION; DEFENDANTS ARE PRECLUDED FROM INTRODUCING THE VIDEO IN EVIDENCE (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant’s should have been precluded from introducing in evidence a surveillance video depicting plaintiff’s accident. Although the video had been explicitly demanded by plaintiff, defendants did not produce it until after plaintiff’s deposition, six months after the entry of the compliance order: Supreme Court improvidently exercised its discretion […]

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PETITIONERS, THE NEW YORK TAXI WORKERS ALLIANCE, HAD STANDING TO CONTEST THE NYC TAXI AND LIMOUSINE COMMISSION’S PILOT PROGRAM WHICH WOULD ADD 2500 FOR-HIRE VEHICLES TO THE CITY STREETS; PETITIONERS DEMONSTRATED THE ADDED VEHICLES WOULD REDUCE MEMBERS’ INCOME (INJURY-IN-FACT) IN VIOLATION OF A LOCAL LAW (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Higgitt, reversing Supreme Court, determined the petitioners, the New York Taxi Workers Alliance and two individual drivers, had standing to challenge a pilot program initiated by the NYC Taxi and Limousine Commission as violating a Local Law. The pilot program would put 2500 more for-hire vehicles […]

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DEFENDANT WAS COOPERATIVE DURING HIS ARREST; HIS SUBSEQUENT RESISTANCE, THEREFORE, DID NOT CONSTITUTE “RESISTING ARREST;” INDICTMENT DISMISSED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the defendant’s resisting-arrest conviction was against the weight of the evidence and dismissed the indictment. Defendant was cooperative when he was placed under arrest. His subsequent resistance, therefore, did not constitute resisting arrest: As the People concede, defendant’s conviction of resisting arrest was against the weight of the […]

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