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PLAINTIFF DID NOT EXERCISE DUE DILIGENCE IN IDENTIFYING THE PARTY INITIALLY SUED AS “JOHN DOE TRUCKING COMPANY;” COMPLAINT DISMISSED AS TIME-BARRED (SECOND DEPT). ​

The Second Department, reversing Supreme Court and dismissing the complaint as time-barred, determined plaintiff did not exercise due diligence in identifying the party initially sued as “John Doe Trucking Company” prior to the expiration of the statute of limitations: Pursuant to CPLR 1024, “[a] party who is ignorant, in whole or in part, of the […]

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CONTRARY TO FAMILY COURT’S RULING, THE EVIDENCE SUPPORTED PARENTAL NEGLECT FINDINGS WITH RESPECT TO ALL THE CHILDREN FOR FAILURE TO PROVIDE MEDICAL AND DENTAL TREATMENT AND FAILURE TO ENSURE SCHOOL ATTENDANCE (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined the evidence supported finding the parents neglected the children by failing to provide medical and dental care and failing to ensure school attendance: A neglected child is defined, in relevant part, as a child less than 18 years of age “whose physical, mental or emotional condition has been […]

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ALTHOUGH PLAINTIFF TESTIFIED SHE DID NOT KNOW WHAT CAUGHT HER HEEL AND CAUSED HER TO FALL, THE CIRCUMSTANTIAL EVIDENCE THAT A MIS-LEVELED CONCRETE SLAB CAUSED THE FALL COULD ALLOW THE JURY TO DETERMINE THE CAUSE WITHOUT RESORT TO SPECULATION; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined that, defendant’s motion for summary judgment in this slip and fall case should have been denied. Plaintiff testified “something caught her heel” when she was walking backwards from a gravel driveway to the garage and she fell onto concrete in the garage. Plaintiff could not identify the cause […]

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THE DEFENDANT SAID “HE DIDN’T WANT TO TALK ABOUT THAT …” AND THE POLICE STOPPED QUESTIONING HIM; AN HOUR AN A HALF LATER THE POLICE RESUMED QUESTIONING WITHOUT RE-READING THE MIRANDA RIGHTS; THOSE STATEMENTS SHOULD HAVE BEEN SUPPRESSED; NEW TRIAL ORDERED (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction and ordering a new trial, determined the statements made by defendant after he invoked his right to remain silent should have suppressed. The questioning stopped after defendant said “he didn’t want to talk about that …”. The questioning resumed an hour and a half later without a re-reading of […]

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THE JUDGE’S ASSESSING SORA RISK-LEVEL POINTS NOT REQUESTED BY THE PEOPLE VIOLATED DEFENDANT’S RIGHT TO DUE PROCESS OF LAW; THE JUDGE FAILED TO MAKE THE FINDINGS REQUIRED BY THE CORRECTION LAW FOR AN UPWARD DEPARTURE; DETERMINATION VACATED (FOURTH DEPT).

The Fourth Department, reversing the SORA risk level determination, held that the judge violated defendant’s right to due process of law by assessing points that were not requested by the People, and violated the Correction Law requirements for imposing an upward departure: Although defendant failed to object to the assessment of points … when the […]

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THE PEOPLE DID NOT DEMONSTRATE THEY EXERCISED DUE DILIGENCE IN BRINGING A POLICE OFFICER TO COURT TO TESTIFY AT A PRETRIAL HEARING; THE 33-DAY DELAY WAS UNREASONABLE AND CHARGEABLE TO THE PEOPLE; DEFENDANT’S SPEEDY TRIAL MOTION SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department determined defendant’s speedy trial motion should have been granted and the indictment was dismissed. A 33-day delay in having a police officer come to court to testify at a pretrial hearing was deemed unreasonable and chargeable to the People: The People announced readiness in July 2021 and, subsequently, a combined Huntley and […]

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IN THIS CHILD VICTIMS ACT CASE BASED ON ALLEGATIONS OF SEXUAL ABUSE BY A TEACHER IN THE 70’S, EVIDENCE SUBMITTED BY PLAINTIFF AND DEFENDANTS RAISED QUESTIONS OF FACT WHICH SUPPORTED THE NEGLIGENT SUPERVISION, TRAINING AND HIRING AND RETENTION CAUSES OF ACTION (FOURTH DEPT).

The Fourth Department, reversing Supreme Court in this Child Victims Act case, determined the negligent supervision, negligent training, and negligent hiring and retention causes of action against the school district, based on allegations of sexual abuse of plaintiff by a music teacher in the 70’s, should not have been dismissed. The evidence presented by the […]

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THE INSTALLATION OF MOTION-ACTIVATED SECURITY LIGHTS WHICH SHINE INTO A NEIGHBOR’S PROPERTY CAN CONSTITUTE A PRIVATE NUISANCE (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined the nuisance cause of action, based upon defendants’ installation of flood lights, should not have been dismissed: “To establish a claim of private nuisance, a plaintiff must show: ‘an interference (1) substantial in nature, (2) intentional in origin, (3) unreasonable in character, (4) with [the plaintiff’s] property […]

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THE ADDITIONAL FIVE-YEAR CONSECUTIVE SENTENCES PURSUANT TO PENAL LAW 265.09 (2) DID NOT APPLY TO FIVE COUNTS OF THE INDICTMENT; THE APPEAL OF AN ILLEGAL SENTENCE DOES NOT REQUIRE PRESERVATION (FOURTH DEPT).

The Fourth Department determined several of the additional consecutive five-year sentences pursuant to Penal Law 265.09( 2) were illegal. The court noted that preservation is not required for the appeal of an illegal sentence: … [Penal Law 265.09(2)] provides in relevant part that, “[n]otwithstanding any other provision of law to the contrary, when a person […]

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THE SEARCH OF THE UNCONSCIOUS OR SLEEPING DEFENDANT’S POCKETS WAS NOT A SEARCH INCIDENT TO ARREST OR A SEARCH PURSUANT TO THE MENTAL HYGIENE LAW; THE SEIZED COCAINE SHOULD HAVE BEEN SUPPRESSED; INDICTMENT DISMISSED (FOURTH DEPT).

The Fourth Department, vacating defendant’s guilty plea and dismissing the drug-possession indictment, determined the police officer’s search of defendant’s pocket while he was unconscious was not a valid search incident to arrest a was not justified under the Mental Hygiene Law. The police entered the apartment with the tenant’s permission to search for a person […]

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