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DEFENDANT WAS PROSECUTED AND CONVICTED BY A SPECIAL DISTRICT ATTORNEY WHO DID NOT MEET THE RESIDENCY REQUIREMENTS IN THE COUNTY LAW; THE ISSUE WAS RAISED FOR THE FIRST TIME ON APPEAL; THE INDICTMENT WAS PROPERLY DISMISSED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Troutman, affirming the Fourth Department, determined the court was without authority to appoint a special district attorney who did not meet the residency requirements in the County Law. The defendant, who was convicted, raised the issue for the first time on direct appeal. The indictment […]

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DEFENDANT WAS NOT UNDULY PREJUDICED BY CODEFENDANT’S ATTORNEY’S SUMMATION-ARGUMENT THAT DEFENDANT WAS A SHOOTER AND THE CODEFENDANT WAS NOT; THE TRIAL EVIDENCE DID NOT POINT TO THAT CONCLUSION AND THE JURY WAS INSTRUCTED THAT SUMMATIONS ARE NOT EVIDENCE (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Cannataro, affirming the Fourth Department, determined that the trial judge properly denied the defendant’s motion to sever the trials of the codefendants. The charges stemmed from a drive-by shooting in which two guns were fired. The trial evidence did not demonstrate defendant’s lack of involvement. […]

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THE ELEVEN YEAR ELECTION LAW (EYEL), WHICH MANDATES EVEN-YEAR COUNTY ELECTIONS, DOES NOT VIOLATE THE MUNICIPAL HOME RULE PROVISIONS OF THE NEW YORK STATE CONSTITUTION; THE CHALLENGE BY COUNTIES WITH CHARTER PROVISIONS MANDATING ODD-YEAR ELECTIONS WAS REJECTED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Garcia, determined the state had the authority to pass the Even Year Election Law (EYEL) which mandates even-year local elections. Several counties with charters setting odd-year elections challenged the EYEL as violating the home rule provisions of article IX of the State Constitution: The Municipal […]

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A JUDGE CANNOT ORDER DISCOVERY IN A FOREIGN JURISDICTION WHICH IS A SIGNATORY TO THE HAGUE CONVENTION WITHOUT COMPLYING WITH THE REQUIREMENTS OF THE CONVENTION (FIRST DEPT).

The First Department, reversing Supreme Court, determined the judge should not have ordered discovery of a nonparty’s electronic devices in a foreign jurisdiction without complying with the Hague Convention. The nonparty, de Putron, resides in the island country of Jersey in the United Kingdom: … Supreme Court improperly directed the discovery of de Putron’s electronic […]

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APPELLANT WAS SLOWING DOWN APPROACHING PLAINTIFF’S VEHICLE WHICH WAS STOPPED WHEN APPELLANT WAS STRUCK FROM BEHIND AND PUSHED INTO PLAINTIFF’S VEHICLE; APPELLANT WAS ENTITLED TO SUMMARY JUDGMENT DISMISSING THE COMPLAINT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined appellant was entitled to summary judgment in this rear-end collision case. Appellant was slowing down approaching plaintiff’s car in front, which was stopped, when appellant was struck from behind and pushed into plaintiff: “A ‘defendant moving for summary judgment in a negligence action has the burden of establishing, […]

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THE ADMINSTRATOR’S SIX-YEAR DELAYING IN SEEKING SUBSTITUTION FOR THE DECEASED PLAINTFF, COUPLED WITH THE PREJUDICE TO THE DEFENDANT IN THIS PERSONAL INJURY CASE, WARRANTED DISMISSAL OF THE COMPLAINT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the administrator’s six-year delay in substituting the estate for the deceased in this personal injury case, warranted dismissal of the complaint: “The death of a party divests the court of jurisdiction and stays the proceedings until a proper substitution has been made” … . CPLR 1021 provides that […]

APPELLANT WAS SLOWING DOWN APPROACHING PLAINTIFF’S VEHICLE WHICH WAS STOPPED WHEN APPELLANT WAS STRUCK FROM BEHIND AND PUSHED INTO PLAINTIFF’S VEHICLE; APPELLANT WAS ENTITLED TO SUMMARY JUDGMENT DISMISSING THE COMPLAINT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment in this rear-end collision case. Appellant was slowing down approach plaintiff’s car in front, which was stopped, when appellant was struck from behind and pushed into plaintiff. Appellant was entitled to summary judgment: “A ‘defendant moving for summary judgment in a negligence […]

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DEFENDANT DEFAULTED IN THIS CHILD VICTIMS ACT CASE ALLEGING HE SEXUALLY ABUSED PLAINTIFF; DEFENDANT SHOULD NOT HAVE BEEN ALLOWED TO DENY THE ABUSE IN THE DAMAGES TRIAL; NEW DAMAGES TRIAL ORDERED (SECOND DEPT). ​

The Second Department, ordering a new trial on damages, determined defendant, who had defaulted in this Child Victims Act case alleging sexual abuse of the plaintiff by the defendant, should not have been allowed to deny the abuse in the damages trial: …Supreme Court erred in permitting the defendant to testify that the plaintiff’s allegations […]

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ONE OF THE THREE DEFENDANTS, THE OWNER OF THE OTHER TWO, WAS NOT SHOWN TO BE LIABLE UNDER THE LABOR LAW; THEREFORE THE $10,000,000 PUNITIVE-DAMAGES JUDGMENT AGAINST THE OWNER SHOULD NOT HAVE BEEN AWARDED; NEW YORK DOES NOT RECOGNIZE AN INDEPENDENT CAUSE OF ACTION FOR PUNITIVE DAMAGES (SECOND DEPT).

The Second Department, reversing the $10,000,000 judgment for punitive damages in this Labor Law 220, 240(1) and 241(6) action, noted that New York does not recognize an independent cause of action for punitive damages. Summary judgment was granted against two defendants. but was denied with respect to Berger, the owner of the other two defendants. […]

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THERE IS A QUESTION OF FACT WHETHER THE SCHOOL DISTRICT HAD CONSTRUCTIVE NOTICE OF THE ALLEGED SEXUAL ABUSE OF PLAINTIFF-STUDENT IN THIS CHILD VICTIMS ACT CASE (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined defendants in this Child Victims Act case against the school district for negligent hiring, retention and supervision did not demonstrate a lack of constructive notice of the alleged sexual abuse of plaintiff-student by a custodian. Therefore the defendant’s motion for summary judgment should not have been granted: […]

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