The Second Department, vacating defendant’s assault third conviction, determined the evidence of physical injury was legally insufficient: … [T]he evidence was legally insufficient to support the defendant’s conviction of assault in the third degree, charged in count 6 of the indictment. The evidence, when viewed in the light most favorable to the prosecution … , […]
The Second Department, reversing defendant’s conviction, determined defendant was deprived of a fair trial by prosecutorial misconduct. Although some of the errors were not preserved, the appeal was considered in the interest of justice: The charge of criminally negligent homicide arose from an incident in which the defendant, while operating her motor vehicle, struck Evelyn […]
The Second Department, reversing Family Court, determined the family offense proceeding should not have been dismissed based on the allegation venue was improper. A family offense proceeding may be brought based upon the residence of the family member, as well as were the offense took place: A family offense proceeding pursuant to Family Court Act […]
The Second Department, reversing Family Court, determined the court never held a hearing on the newly filed derivative neglect petition (re: Vincent). The three-day fact-finding hearing related only to the neglect petition (re: Serena). At the subsequent dispositional hearing, the court improperly consolidated the two petitions: The right to due process encompasses a “meaningful opportunity […]
The Second Department, reversing Supreme Court, determined the zoning board of appeals (ZBA) properly took into the considerations the factors prescribed by the Town Law when it denied petitioner’s application for a setback variance. The setback requirement for a swimming was 14 feet. Due to an error made by the contractor, petitioner’s pool was installed […]
The Second Department, reversing Supreme Court, determined plaintiff bank in this foreclosure action was not entitled to summary judgment on its motion to confirm the referee’s report and obtain a judgment of foreclosure. The defendants demonstrated the bank did not comply with the “separate envelope” rule in RPAPL 1304, which entitled to defendants to summary […]
The Second Department, reversing (modifying) Supreme Court, determined the Labor Law 200 and 240(1) causes of action should not have been dismissed. Claimant was in the basket of a man lift when a car carrier (truck) struck the basket causing it to “ricochet back and forth/” The fact that claimant didn’t fall from the basket […]
The Second Department, reversing Supreme Court, determined defendant in this rear-end collision case did not raise a question of fact by alleging plaintiff stopped suddenly: … [P]laintiff established his prima facie entitlement to judgment as a matter of law on the issue of liability by averring that he had activated his right turn signal, had […]
The Second Department, reversing Supreme Court, determined plaintiff bank in this foreclosure action did not demonstrate compliance with the notice requirements of RPAPL 1304 and the mortgage: … [P]laintiff failed to establish, prima facie, that RPAPL 1304 notices were mailed to each defendant by certified and first-class mail. The affidavit submitted in support of the […]
The Second Department, reversing Supreme Court, determined the causes of action against plaintiff’s employer for negligence alleging an assault by a coworker should not have been dismissed. Defendants’ alleged that Workers’ Compensation was the plaintiff’s exclusive remedy. The Workers’ Compensation Board has primary jurisdiction over determinations of the applicability of the Workers’ Compensation Law. Because […]
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