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IN THIS “CHILD VICTIMS ACT” ACTION ALLEGING SEXUAL ABUSE IN THE 1950’S BY EMPLOYEES OF THE NOW DISSOLVED YMCA NIAGARA FALLS, THERE ARE QUESTIONS OF FACT WHETHER THE DE FACTO MERGER DOCTRINE APPLIES RENDERING YMCA BUFFALO LIABLE FOR THE TORTS OF YMCA NIAGARA FALLS (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined this “Child Victims Act” action against YMCA Buffalo, alleging sexual abuse in the 1950’s by employees at the now dissolved YMCA Niagara Falls, should not have been dismissed. The decision is comprehensive and cannot be fairly summarized here. There exist triable issues of fact whether the de facto […]

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THERE WAS AN “UNWARNED” THREE-FOOT DROP ON THE OTHER SIDE OF A DOOR IN A REMOTE AREA OF THE HOSPITAL; PLAINTIFF, A HOSPITAL WORKER, WAS INJURED BY THE THREE-FOOT DROP; THE ARCHITECTURAL MALPRACTICE CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED ON THE GROUND NO DUTY WAS OWED TO THE PLAINTIFF; THE CONSTRUCTION COMPANY JUSTIFIABLY RELIED ON THE ARCHITECT’S SPECIFICATIONS AND COULD NOT BE HELD LIABLE (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined the architectural malpractice cause of action should not have been dismissed. Plaintiff, a hospital maintenance groundskeeper, was injured by a three-foot drop on the other side of a door for which there were no warning signs. Although the door was in a remote area of the hospital, […]

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IF AN APPELLATE ISSUE IS NOT LISTED IN THE NOTICE OF APPEAL, THE ISSUE IS NOT BEFORE THE APPELLATE COURT (FOURTH DEPT).

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 […]

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PETITIONER HELD HIMSELF OUT AS THE FINANCIAL DECISION-MAKER OF THE BUSINESS AND THE TAX TRIBUNAL PROPERLY FOUND PETITIONER WAS PERSONALLY LIABLE FOR UNPAID EMPLOYEE WITHHOLDING TAXES; THE TWO DISSENTERS ARGUED THAT PETITIONER WAS NOT THE FINANCIAL DECISION-MAKER AND WAS PUT IN CHARGE ONLY TO ALLOW THE BUSINESS TO BE CERTIFIED AS A MINORITY BUSINESS-ENTERPRISE; THE IRS IN A PARALLEL PROCEEDING HAD ABSOLVED PETITIONER OF LIABILITY (THIRD DEPT).

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, […]

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TERMINATION OF MOTHER’S SUPERVISED VISITATION IS A “DRASTIC REMEDY” WHICH MUST BE SUPPORTED BY “SUBSTANTIAL PROOF” CONTINUED VISITATION “WOULD BE HARMFUL TO THE CHILD;” THE PROOF HERE DID NOT MEET THOSE CRITERIA (THIRD DEPT). ​

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 […]

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HERE THE DEFENDANT, IN HIS MOTION TO VACATE HIS CONVICTION, RAISED ISSUES ABOUT THE EXTENT OF HIS COOPERATION AND WHETHER NEW DEFENSE COUNSEL ADEQUATELY INVESTIGATED THE PROSECUTOR’S WITHDRAWAL OF THE COOPERATION AGREEMENT; THE PEOPLE’S RESPONSE DID NOT ADDRESS THESE SUBSTANTIVE ISSUES; THEREFORE COUNTY COURT SHOULD HAVE HELD A HEARING (THIRD DEPT).

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 […]

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DEFENDANT WAS CONCERNED HIS INCARCERATED BROTHER WAS BEING HARASSED BY CORRECTIONS OFFICERS; HE CALLED THE DEPARTMENT OF CORRECTIONS AND THREATENED TO “BLOW AN OFFICER’S HEAD OFF” “IF THEY TOUCH MY BROTHER;” DEFENDANT’S “MAKING A TERRORISTIC THREAT” CONVICTION WAS AGAINST THE WEIGHT OF THE EVIDENCE (THIRD DEPT).

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” […]

IF PLAINTIFF, A FOREMAN, HAD THE AUTHORITY TO STOP WORK BECAUSE OF RAIN, THEN HIS CONTINUING TO WORK MAY HAVE BEEN THE SOLE PROXIMATE CAUSE OF HIS FALL; IF PLAINTIFF HAD BEEN INSTRUCTED TO WORK IN THE RAIN, THEN THE WET PLYWOOD MAY HAVE BEEN THE SOLE PROXIMATE CAUSE OF HIS FALL; BECAUSE OF THE CONFLICTING OR ABSENCE OF EVIDENCE ON THESE ISSUES, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED; TWO JUSTICE DISSENT (THIRD DEPT).

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 […]

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THE UNEXPLAINED FAILURE TO SEE A VEHICLE BEFORE COLLIDING WITH IT, WITHOUT MORE, DOES NOT RISE TO THE LEVEL OF CRIMINAL NEGLIGENCE; THE EVIDENCE OF CRIMINAL NEGLIGENCE WAS LEGALLY INSUFFICIENT (THIRD DEPT). ​

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 […]

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DEFENDANT’S STATEMENTS DURING THE PLEA ALLOCUTION NEGATED ELEMENTS OF THE CHARGED OFFENSE; THE JUDGE SHOULD HAVE CONDUCTED AN INQUIRY OR GIVEN THE DEFENDANT THE OPPORTUNITY TO WITHDRAW HIS PLEA; THIS ISSUE FALLS WITHIN AN EXCEPTION TO THE PRESERVATION REQUIREMENT (THIRD DEPT).

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 […]

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