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THE MAJORITY CONCLUDED THAT, IF IT WAS ERROR TO ADMIT TESTIMONY THAT THE RAPE VICTIM WAS AWARE DEFENDANT HAD BEEN INCARCERATED, THE ERROR WAS HARMLESS; TWO DISSENTERS ARGUED THE EVIDENCE HAD NO PROBATIVE VALUE BECAUSE THE VICTIM’S STATE OF MIND WAS NOT IN ISSUE AND ITS INTRODUCTION WAS THERFORE HIGHLY PREJUDICIAL (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, determined that, if it was error to admit testimony that the rape victim was aware defendant had been incarcerated, the error was harmless. The dissenters argued that the victim’s state of mind, i.e., awareness of defendant’s prior incarceration, was irrelevant because the victim was immediately overpowered and pushed […]

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THE MAJORITY HELD THE DEFENDANT’S ACTIONS INSIDE THE STOPPED VEHICLE RAISED A REASONABLE SUSPICION DEFENDANT WAS ARMED, JUSTIFYING A PAT DOWN SEARCH; THE DISSENT ARGUED THE DEFENDANT’S ACTIONS WERE EQUIVOCAL AND INNOCUOUS (FOURTH DEPT).

The Fourth Department, over a dissent, determined the police officer’s observations of defendant inside the stopped vehicle were sufficient to raise a reasonable suspicion the defendant was armed, which justified the pat down search. The dissent argued that the proof presented at the suppression hearing did not meet the “reasonable suspicion” standard. Although the dissent […]

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THE TWO-JUSTICE DISSENT ARGUED THAT THE MAJORITY ERRONEOUSLY AFFIRMED THE DENIAL OF THE MOTION TO VACATE THE CONVICTION ON A GROUND NOT RELIED UPON BY THE MOTION COURT (FOURTH DEPT). ​

The Fourth Department affirmed the summary denial of defendant’s motion to vacate his conviction on ineffective assistance grounds. Defendant argued his counsel was ineffective because counsel did not object to defendant’s being forced to wear a stun belt. The two-justice dissent noted that the ground on which the majority based its decision, i.e., that defense […]

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TO FACILITATE APPELLATE REVIEW THE JUDGE WHO AWARDED PLAINTIFFS SUMMARY JUDGMENT, ATTORNEY’S FEES AND COSTS SHOULD HAVE WRITTEN A DECISION EXPLAINING THE BURDENS OF PROOF AND REASONING; ISSUING ORDERS WITHOUT AN EXPLANATORY DECISION IS AN “UNACCEPTABLE PRACTICE;” PLAINTIFFS DID NOT SHOW THEIR INTERPRETATION OF THE CONTRACT WAS THE ONLY REASONABLE ONE; THE FRAUDULENT MISREPRESENTATION CAUSE OF ACTION CANNOT BE BASED UPON AN ALLEGED INTENT TO BREACH THE CONTRACT AND WAS NOT SUFFICIENTLY PLED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined (1) to facilitate appellate review, the court should have written a decision explaining the burdens of proof and its reasoning in granting plaintiffs summary judgment and awarding attorney’s fees and costs; (2)  the plaintiffs did not demonstrate the contract was unambiguous and therefore were not entitled to summary […]

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THE CITY COMMISSIONER ORDERED THE DEMOLITION OF A GRAIN ELEVATOR, A CITY LANDMARK, WHICH HAD BEEN DAMAGED BY WIND; SUPREME COURT PROPERLY ORDERED A HEARING ON WHETHER THE COMMISSIONER HAD A RATIONAL BASIS FOR ORDERING DEMOLITION BUT IMPROPERLY PROHIBITED THE PETITIONER FROM PRESENTING EVIDENCE THAT DEMOLITION WAS NOT NECESSARY; NEW HEARING ORDERED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court and ordering another hearing, determined that the petitioner was entitled to present evidence at the hearing about the Buffalo Commissioner of the City’s Department of Permit and Inspections Services’ (Commissioner’s) ruling that a grain elevator, a City landmark, which was damaged by wind, must be demolished. Supreme Court had […]

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A CORPORATE OFFICER OR SHAREHOLDER CANNOT BE PERSONALLY LIABLE FOR NONFEASANCE (DOING NOTHING), AS OPPOSED MISFEASANCE (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined the complaint against the individual defendant, John Milevoi, an officer or shareholder of the  property management company, defendant M&L Milevoi Management, must be dismissed. Plaintiff alleged a leak in the ceiling of her apartment caused her slip and fall: The complaint should be dismissed against the individual […]

PLAINTIFF’S DECEDENT WAS IN THE ELEVATOR SHAFT WHEN THE ELEVATOR, OPERATING NORMALLY, DESCENDED AND CRUSHED HIM; THE ELEVATOR WAS NOT A “FALLING OBJECT” WITHIN THE MEANING OF LABOR LAW 240(1); COMPLAINT DISMISSED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the elevator which descended and crushed plaintiff’s decedent, who had entered the shaft, was not a “falling object” within the meaning of Labor Law 240(1). Therefore the complaint against defendants must be dismissed: Plaintiff’s decedent, an elevator mechanic, entered an elevator shaft on the lobby level, under an […]

PLAINTIFF’S FALLING INTO A HOLE ON THE PREMISES AFTER HIS TRUCK WAS LOADED WAS NOT THE RESULT OF “USE” OF THE TRUCK WITHIN THE MEANING OF THE INSURANCE POLICIES (FIRST DEPT).

The First Department, reversing Supreme Court, determined the plaintiff’s falling into a hole after he was finished loading his truck did not result from his “use” of the truck within the meaning of the applicable insurance policies: While “use” of an automobile includes loading and unloading , an accident does not arise from the “use” […]

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PLAINTIFF DANCER STATED CAUSES OF ACTION AGAINST DEFENDANT DANCER AND THEIR EMPLOYER, THE NEW YORK CITY BALLET (NYCB), IN CONNECTION WITH INTIMATE IMAGES ALLEGEDLY DISCLOSED BY THE DEFENDANT DANCER (FIRST DEPT). ​

The First Department, in a full-fledged opinion by Justice Singh, over an extensive dissenting opinion, determined plaintiff, Waterbury, stated causes of action for: (1) violation of the NYC Administrative Code provision which prohibits the disclosure of intimate images without consent; (2) intentional infliction of emotional distress; and (3) negligent hiring, supervision and retention. The plaintiff […]

STAFFING COMPANY WHICH SCREENED JOB APPLICANTS FOR ITS CLIENTS WAS NOT AN EMPLOYER LIABLE FOR UNEMPLOYMENT INSURANCE CONTRIBUTIONS (THIRD DEPT). ​

The Third Department, reversing the Unemployment Insurance Appeal Board, determined Strikeforce Staffing was not an employer of the persons for whom it found employment with its clients. Therefore, Strikeforce was not liable for additional unemployment insurance contributions on remuneration paid to the claimant and others similarly situated: Strikeforce recruited job seekers for its clients, businesses […]

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