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THE ALLEGED INTENTIONAL ACT OF THROWING A HAND TRUCK AT A BUS INJURING PLAINTIFF-PASSENGER DID NOT SUPPORT NEGLIGENCE OR NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS CAUSES OF ACTION, BUT DID SUPPORT AN INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS CAUSE OF ACTION (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the allegation plaintiff was injured when defendant (McGregor) threw a hand truck at the bus in which plaintiff was a passenger did not support causes of action for negligence or negligent infliction of emotional distress, but did support a cause of action for intentional infliction of emotional […]

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THE INTERSATE COMPACT ON THE PLACEMENT OF CHILDREN (ICPC) APPLIES ONLY TO PLACEMENT IN FOSTER CARE OR PLACEMENT RELATED TO ADOPTION; THEREFORE THE ICPC DID NOT APPLY HERE WHERE FATHER, A NORTH CAROLINA RESIDENT, SOUGHT CUSTODY OF THE CHILD; NORTH CAROLINA, APPLYING THE ICPC, DID NOT APPROVE PLACEMENT WITH FATHER; THE APPELLATE DIVISION’S DENIAL OF FATHER’S CUSTODY PETITION ON THAT GROUND WAS REVERSED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Cannataro, resolving a conflict between Second and First Departments, determined the Interstate Compact on the Placement of Children (ICPC), which requires that a state approve the placement of a child from another sate, applies only to placement in foster care or adoption, and not, as […]

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CIVIL SERVICE LAW SECTION 71 ALLOWS THE CITY TO TERMINATE AN EMPLOYEE WHO WAS INJURED ON THE JOB AND IS UNABLE TO RETURN TO WORK AFTER A YEAR; THE PROCEDURE FOR TERMINATING SUCH AN EMPLOYEE IS SUBJECT TO THE COLLECTIVE BARGAINING REQUIREMENT OF THE TAYLOR LAW (CIVIL SERVICE LAW SECTION 200 ET SEQ) (CT APP).

The Court of Appeals, in a full-fledged opinion by Justice Troutman, reversing the Second Department, determined the city was required to engage in collective bargaining with the union to agree on the procedure for terminating an employee (here a firefighter) who was injured on the job and has not returned to work after a year: […]

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THE EVIDENCE INDICATED VISITATION WITH FATHER WOULD NOT BE IN THE BEST INTERESTS OF THE CHILD; FATHER’S PETITION FOR VISITATION SHOULD NOT HAVE BEEN GRANTED (THIRD DEPT).

The Third Department, reversing Family Court, determined the evidence indicated visitation with father would not be in the best interests of the child and his petition for visitation should not have been granted: … [I]t is undisputed that the father has not lived with the child in over a decade and has only infrequently visited […]

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ALTHOUGH PLAINTIFF-SELLER MAY HAVE THOUGHT THE PARCEL OF REAL PROPERTY SHE SOLD WAS SMALLER THAN IT ACTUALLY WAS, DEFENDANT-BUYER WAS NEVER UNDER THAT IMPRESSION; THE COMPLAINT ALLEGING THE DEAL SHOULD BE RESCINDED BASED ON MUTUAL MISTAKE SHOULD HAVE BEEN DISMISSED (THIRD DEPT).

The Third Department, reversing Supreme Court and granting defendant’s motion for summary judgment dismissing the complaint, determined the plaintiff-seller of real property did not demonstrate the sale should be rescinded based upon mutual mistake. Plaintiff alleged she intended to transfer 20 acres but the deed described a 39-acre parcel. The parcel, however, was described in […]

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THE FACT THAT DEFENDANT DID NOT APPEAL HIS 2006 CONVICTION ON THE GROUND HE WAS NOT INFORMED OF THE PERIOD OF POSTRELEASE SUPERVISION DID NOT PREVENT DEFENDANT FROM RAISING THAT ISSUE TO CHALLENGE THE CONSTITUTIONALITY OF THE 2006 CONVICTION IN THE CONTEXT OF A PERSISTENT VIOLENT FELONY OFFENDER PROCEEDING (THIRD DEPT).

The Third Department, vacating defendant’s sentence as a persistent violent felony offender, determined the fact that defendant didn’t appeal his 2006 conviction on the ground he was not informed of the period of postrelease supervision did not prevent him from raising that issue to challenge use of the 2006 conviction in a persistent-felony-offender proceeding: Defendant […]

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THERE WAS SUFFICIENT EVIDENCE, INCLUDING EXPERT EVIDENCE, OF DEFENDANT’S INTOXICATION TO RAISE A DOUBT WHETHER DEFENDANT FORMULATED THE INTENT TO COMMIT ASSAULT SECOND; THE REQUEST FOR THE INTOXICATION JURY CHARGE SHOULD HAVE BEEN GRANTED; NEW TRIAL ORDERED (THIRD DEPT).

The Third Department, reversing defendant’s conviction and ordering a new trial, determined there was sufficient evidence of defendant’s intoxication to warrant the jury charge on intoxication. There was enough evidence of intoxication to support a doubt whether defendant was able to formulate the requisite intent to commit assault second: “To warrant the submission of an […]

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WHETHER A PRIVATE COLLEGE ACTED IRRATIONALLY OR ARBITRARILY AND CAPRICIOUSLY IN ELIMINATING FACULTY POSITIONS IN RESPONSE TO A BUDGET SHORTFALL IS PROPERLY DETERMINED IN AN ARTICLE 78 PROCEEDING; HERE THE COLLEGE FOLLOWED THE RELEVANT RULES IN THE COLLEGE MANUAL; SUPREME COURT SHOULD NOT HAVE RULED THE COLLEGE ACTED ARBITRARILY AND CAPRICIOUSLY (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the respondent private college followed the relevant provisions of the college manual in determining what programs and faculty positions to eliminate in response to a budget shortfall. Petitioners, members of the music department faculty whose positions were eliminated, did not demonstrate the respondents’ decisions were irrational or arbitrary […]

AN UNFAVORABLE ANONYMOUS GOOGLE REVIEW OF PLAINTIFF ORTHODONTIST, ALTHOUGH IT INCLUDED BOTH FACT AND OPINION, WOULD BE UNDERSTOOD BY A READER TO BE PURE OPINION; THE REVIEW IS NOT ACTIONABLE DEFAMATION (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined that an unfavorable Google review of plaintiff orthodontist by a former minor patient did not constitute actionable defamation: Plaintiffs, an orthodontist and his professional corporation, allege that defendants — a former minor patient and that patient’s parents — defamed them in an unfavorable review posted on Google. Contrary […]

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THE DEFENDANT WAS REPRESENTED AT TRIAL BUT REPRESENTED HIMSELF IN PRETRIAL PROCEEDINGS; THE JUDGE NEVER ADEQUATELY EXPLAINED THE RISKS OF REPRESENTING ONESELF OR THE DIFFERENCE BETWEEN AN ATTORNEY ACTING AS A “LEGAL ADVISOR” TO THE DEFENDANT AND AN ATTORNEY WHO “REPRESENTS” THE DEFENDANT; CONVICTION REVERSED AND MATTER REMITTED TO REPEAT PRETRIAL PROCEEDINGS (CT APP).

​The Court of Appeals, in a full-fledged opinion by Judge Troutman, reversing the appellate division, determined the judge never adequately explained to the defendant the risks associated with representing himself, and the judge did not explain the difference between an attorney who acts as a “legal advisor” to the defendant as opposed to an attorney […]

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