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PLAINTIFF’S SUMMARY JUDGMENT MOTION ON HIS LABOR LAW 241(6) CAUSE OF ACTION SHOULD HAVE BEEN DENIED BECAUSE IT WAS BASED ON EVIDENCE FIRST PRESENTED IN REPLY; PLAINTIFF WAS COLLATERALY ESTOPPED FROM CLAIMING TRAUMATIC BRAIN INJURY AND COGNITIVE DISORDER BY THE RULING IN HIS WORKERS’ COMPENSATION CASE (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court in this construction accident case, determined plaintiff’s motion for summary judgment on his Labor Law 241(6) cause of action should not have been granted because it was based upon information raised for the first time in reply. The First Department noted that Supreme Court properly found that the […]

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EXCLUDING EVIDENCE WHICH CONTRADICTED AN IMPORTANT PROSECUTION-WITNESS’S ACCOUNT OF HIS ACTIONS RIGHT UP UNTIL THE TIME OF THE SHOOTING, AND THREE 911 CALLS WHICH QUALIFIED AS PRESENT SENSE IMPRESSIONS, DEPRIVED DEFENDANT OF HIS RIGHT TO PUT ON A DEFENSE (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Singas, reversing the Appellate Division in this murder case, determined evidentiary rulings excluding evidence which impeached an important witness and 911 calls admissible as present sense impressions deprived defendant of his right to present a defense. R.M. was a crucial prosecution witness. R.M. claimed to […]

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ONLY AN EXPRESS ACKNOWLEDEMENT OF THE MORTGAGE DEBT PURSUANT TO GENERAL OBLIGATIONS LAW 17-105 COULD REVIVE OR TOLL THE STATUTE OF LIMITATIONS IN THIS FORECLOSURE ACTION; THE REFERENCES TO THE MORTGAGE DEBT IN FINANCIAL STATEMENTS AND TAX RETURNS PROVIDED TO THE MORTGAGOR BY THE MORTGAGEE WERE NOT ENOUGH (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Troutman, over an extensive two-judge dissent, determined that the statute of limitations on the underlying foreclosure action was not tolled based upon acknowledgments of the mortgage debt in financial statements and tax returns. Rather, pursuant to General Obligations Law 17-105, only and express promise to […]

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THE ACCUSATORY INSTRUMENT CHARGING THE DEFENDANT WITH “FRAUDULENT ACCOSTING” WAS FACIALLY SUFFICIENT; IT WAS ENOUGH TO ALLEGE THAT DEFENDANT SPOKE FIRST TO PERSONS PASSING AROUND HIM ON THE SIDEWALK ASKING FOR DONATIONS FOR THE HOMELESS; THERE WAS NO NEED TO ALLEGE DEFENDANT WAS AGGRESSIVE OR PERSISTENT OR TARGETED AN INDIVIDUAL (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Garcia, over an extensive three-judge dissent, determined the accusatory instrument charging defendant with “fraudulent accosting” was facially sufficient. Defendant set up a couple of milk crates as a table in the sidewalk and asked people for donations to the homeless as they walked around the […]

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DEFENDANT DID NOT DEMONSTRATE CONVICTION OF THE B MISDEMEANORS WITH WHICH HE WAS CHARGED WOULD RESULT IN DEPORTATION; THEREFORE DEFENDANT WAS NOT ENTITLED TO A JURY TRIAL (CT APP).

The Court of Appeals, over an extensive two-judge dissent, determined that the defendant did not demonstrate the misdemeanors with which he was charged triggered a right to a jury trial because conviction would result in deportation: Defendant was originally charged with public lewdness, two counts of forcible touching, and two counts of sexual abuse in […]

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THE ANTI-SLAPP STATUTES IN THE CIVIL RIGHTS LAW PROTECTED DEFENDANT AGAINST A DEFAMATION ACTION BY THE PLASTIC SURGEON ABOUT WHOM DEFENDANT POSTED NEGATIVE ONLINE REVIEWS; THE COMPLAINT WAS PROPERLY DISMISSED AND DEFENDANT WAS ENTITLED TO ATTORNEY’S FEES AND DAMAGES (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, in a full-fledged opinion by Justice Rodriguez, in a matter of first impression, determined the Civil Rights Law anti-SLAPP statutes protected defendant’s negative online reviews of plaintiff Aristocrat Plastic Surgery and Dr. Kevin Tehrani. Supreme Court dismissed the complaint but did not award defendant attorney’s fees or damages […]

PLAINTIFF ALLEGEDLY TRIPPED AND FELL CARRYING A PIPE DOWN A PLYWOOD RAMP IN THIS LABOR LAW 200 ACTION; THERE WERE QUESTIONS OF FACT WHETHER THE RAMP CONSTITUTED A DANGEROUS CONDITION AND WHETHER THE DEFENDANTS HAD CONSTRUCTIVE NOTICE OF IT (FIRST DEPT).

The First Department, reversing Supreme Court, determined there were questions of fact whether a plywood ramp was a dangerous condition and whether the defendants had constructive knowledge of the ramp in this Labor Law 200 action. Plaintiff allegedly tripped and fell when carrying a pipe down the ramp: Defendants established their prima facie entitlement to […]

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PLAINTIFF IN THIS NEGLIGENT-HIRING ACTION AGAINST THE HOSPITAL WHICH EMPLOYED A DOCTOR WHO ALLEGEDLY SEXUALLY ASSAULTED HER AND OTHER PATIENTS SOUGHT DISCOVERY; THE IDENTITIES OF THE OTHER ASSAULTED PATIENTS WERE NOT PROTECTED BY THE DOCTOR-PATIENT PRIVILEGE; PARTY STATEMENTS WERE NOT PROTECTED BY THE QUALITY ASSURANCE PRIVILEGE; AND PLAINTIFF WAS ENTITLED TO THE NAMES OF THE DOCTOR’S COWORKERS (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined plaintiff, who, along with other patients, was allegedly sexually assaulted by a doctor, Newman, employed by defendant hospital (Mount Sinai), was entitled to certain discovery. Plaintiff sought discovery of party statements, incident reports, the identities of the other assaulted patients, and the names of the doctor’s coworkers […]

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THE NEW YORK CITY ADMINISTRATIVE CODE PROVISION WHICH PROHIBITS “COMPRESSION OF THE DIAPHRAGM” (BY KNEELING, SITTING OR STANDING ON A PERSON) WHEN EFFECTING AN ARREST IS NOT VOID FOR VAGUENESS (FIRST DEPT).

The First Department, reversing Supreme Court, determined the NYC Administrative Code provision prohibiting and criminalizing the use of certain methods of restraint in effecting an arrest was not void for vagueness. Plaintiffs challenge Administrative Code § 10-181 as unconstitutionally vague and preempted by New York State law. This provision, which became effective July 15, 2020, […]

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BOTH THE WIFE AND THE JUDGE WERE AWARE OF THE HUSBAND’S MENTAL ILLNESS IN THIS DIVORCE ACTION IN WHICH THE HUSBAND WAS PRO SE; WHEN THE HUSBAND FAILED TO APPEAR FOR THE INQUEST AN INQUIRY INTO WHETHER A GUARDIAN AD LITEM SHOULD BE APPOINTED SHOULD HAVE BEEN HELD (FIRST DEPT).

The First Department, reversing Supreme Court, determined the judge should have conducted an inquiry into whether a guardian ad litem should be appointed for the husband in this divorce action. The husband did not appear at the inquest and both the wife and the judge were aware of the husband’s significant mental illness: Judgment was […]

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