The Fourth Department, reversing (modifying) Supreme Court, determined summary judgment was precluded by questions of fact in this action stemming from defendants’ blocking of a tunnel leading to plaintiffs’ parking garage. Plaintiffs alleged they own the rights to the easement created for the construction of the tunnel. The tunnel goes under the Rath Erie County […]
The Third Department, over a two-justice dissent, determent the Tax Tribunal properly found that petitioner was a “responsible person” such that he can be held personally liable for unpaid employee withholding taxes. According to the dissent, petitioner held himself out as the business’s (NECC’s) financial decision-maker as part of an agreement with the 51% shareholder, […]
The Third Department determined the evidence did not support the “drastic remedy” of terminating mother’s supervised visitation with the child: Although Family Court found that both the mother and the father “testified credi[]bly that relations between the mother and child ha[d] deteriorated” — a determination that was borne out by the testimony — the “denial […]
The Third Department, reversing County Court, determined defendant had raised several issues in the motion to vacate the conviction which were not addressed by the People’s response. Some of the issues were corroborated in an affidavit from defendant’s prior attorney. Therefore a hearing was necessary: … [W]e agree with defendant that he is entitled to […]
The Third Department, reversing defendant’s “making a terroristic threat” conviction, determined the conviction was against the weight of the evidence. Defendant’s brother was incarcerated. Defendant was concerned that his brother was being harassed by corrections officers. Defendant allegedly called the Department of Corrections and Community Supervision and said he would “blow an officer’s head off” […]
The First Department, in a full-fledged opinion by Justice Kennedy in this Labor Law 241 (6) action, over a two-justice dissenting opinion, determined conflicting testimony about whether plaintiff, who was a foreman, had the authority to stop work because of rain, or was instructed to work in the rain, raised a question of fact about […]
The Third Department, reversing defendant’s criminally negligent homicide conviction and dismissing the indictment, determined defendant’s failure to see the victim’s vehicle on the side of the highway until it was too late did not rise to the level of criminal negligence (legally insufficient evidence). The victim was in a pickup truck with a sign on […]
The Third Department, reversing defendant’s conviction by guilty plea, determined the defendant made statements during the plea allocution which negated elements of criminal possession of a weapon. At that point, the sentencing judge should have made an inquiry. This issue falls within an exception to the preservation requirement: Penal Law § 265.03 (3) requires the […]
The Third Department reversed defendant’s judgment by guilty plea and dismissed the superior court information (SCI). A defendant cannot be prosecuted by an SCI after indictment (defendant here had already been indicted). The error is jurisdictional and need not be preserved by objection. The issue is not forfeited by a guilty plea: As the Court […]
The Third Department, vacating defendant’s promoting-prison-contraband conviction, determined the trial judge, who had initially dismissed the promoting-prison-contraband count, should not have subsequently stayed the dismissal and gone to trial on the promoting-prison-contraband count with the other charges. Apparently the judge stayed the dismissal of the charge because the People had appealed the dismissal. After the […]
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