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THE 2022 CONGRESSIONAL REDISTRICTING MAP FAVORED DEMOCRATS IN VIOLATION OF ARTICLE III OF THE NYS CONSTITUTION (FOURTH DEPT). ​

The Fourth Department, over a two-justice concurrence and a two-justice partial dissent, determined the NYS 2022 congressional redistricting map was drawn to favor democrats in violation of Article III of the NYS Constitution: … [W]e agree with petitioners and the court that the congressional map was unconstitutional in that it violated article III, § 4 […]

A HEAVY PUMP, 3 TO 4 FEET IN HEIGHT, WHICH WAS LEANING AGAINST THE WALL, TIPPED OVER AND STRUCK THE PLAINTIFF; PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on his Labor Law 240(1) cause of action. A heavy fire pump that was leaning against the wall, unsecured, tipped over and struck plaintiff: Liability under Labor Law § 240(1) arises where a safety device of the kind enumerated in the statute […]

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PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION IN THIS A-FRAME LADDER-FALL CASE; ALTHOUGH NO DEPOSITIONS HAD BEEN TAKEN, THE DEFENDANT FAILED TO SHOW THE SUMMARY JUDGMENT MOTION WAS PREMATURE (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on his Labor Law 240(1) cause of action in this A-frame ladder-fall case. The court noted that the motion for summary judgment was not premature, even though no depositions had been taken: Plaintiff established prima facie that PPC is liable under Labor […]

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PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS INTERSECTION TRAFFIC-ACCIDENT CASE SHOULD HAVE BEEN GRANTED; THE EVIDENCE ESTABLISHED DEFENDANT FAILED TO STOP AT A STOP SIGN AND FAILED TO SEE WHAT SHOULD HAVE BEEN SEEN (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment in this intersection traffic-accident case should have been granted: Plaintiffs established their prima facie entitlement to partial summary judgment by averring that, at the time of the accident, their vehicle was traveling westbound through an intersection at 91st Avenue in Queens, when defendants’ […]

A SUBSEQUENT INJURY TO THE SAME BODY “MEMBER” WHICH WAS THE SUBJECT OF A PRIOR SCHEDULE LOSS OF USE (SLU) AWARD NEED NOT BE REDUCED BY THE PERCENTAGE LOSS OF THE PRIOR AWARD (CT APP).

The Court of Appeals, in a full-fledged opinion addressing two cases by Judge Cannataro, over an extensive dissent in each case, determined that, under Workers’ Compensation Law section 15, a subsequent injury to the same body “member” may be fully compensable, notwithstanding a prior injury involving the same body “member:” The common issue in these […]

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BECAUSE OF A LACK OF PLACEMENT OPTIONS, A CHILD REMOVED FROM SCHOOL WHEN SHE BECAME UNMANAGEABLE REMAINED IN A HOSPITAL EMERGENCY ROOM FOR WEEKS; THE PETITION SOUGHT HER RELEASE FROM THE EMERGENCY ROOM; THE APPEAL WAS DEEMED MOOT BECAUSE THE NYS OFFICE OF PEOPLE WITH DEVELOPMENTAL DISABILITIES HAD FOUND SUITABLE PLACEMENT AND INSTITUTED A PROGRAM TO ENSURE THE PROBLEM WOULD NOT RECUR (CT APP).

The Court of Appeals, dismissing the appeal as moot, over an extensive dissent, determined the exception to the mootness doctrine should not be applied because the problem at the heart of the petition had been adequately addressed by the NYS Office for People with Developmental Disabilities (OPWDD). The subject child had been removed from school […]

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THE EVIDENCE DEMONSTRATED THE DEFENDANT PUNCHED THE POLICE OFFICER AFTER THE DEFENDANT WAS SPRAYED IN THE FACE WITH PEPPER SPRAY; THE JURY SHOULD HAVE BEEN INSTRUCTED ON THE JUSTIFICATION DEFENSE TO THE ASSAULT CHARGE; TWO JUSTICE DISSENT (THIRD DEPT).

The Third Department, reversing defendant’s conviction and ordering a new trial, over a two-justice dissent, determined the justification-defense jury instruction should have been given in this assault case. The defendant punched a police officer after the defendant was sprayed in the face with pepper spray: … [T]he People introduced into evidence a video recording of […]

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IN THIS TRAFFIC ACCIDENT CASE INVOLVING THE DEFENDANT NYC TRANSIT AUTHORITY’S BUS, THE AUTHORITY GAINED TIMELY KNOWLEDGE OF THE POTENTIAL CLAIM WHEN IT INVESTIGATED THE ACCIDENT AND WAS NOT PREJUDICED BY THE DELAY; THE PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED, NOTWITHSTANDING THE ABSENCE OF A REASONABLE EXCUSE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the petition seeking leave to file a late notice of claim in this traffic accident case should have been granted. It was alleged defendant NYC Transit Authority’s bus collided with a NYC sanitation truck which then collided with petitioner’s car. The Transit Authority investigated the accident and therefore […]

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ALTHOUGH THE RPAPL 1304 FORECLOSURE NOTICE, TO BE VALID, MUST ACCURATELY STATE THE DEFAULT AMOUNT AND THE LENGTH OF TIME THE BORROWER HAS BEEN IN DEFAULT, THERE WAS NO SHOWING HERE THE STATED AMOUNT WAS INACCURATE; THE BANK DID NOT DEMONSTRATE IT WAS IN POSSESSION OF THE NOTE AT THE TIME THE ACTION WAS COMMENCED AND THEREFORE DID NOT DEMONSTRATE STANDING TO FORECLOSE; THE EVIDENCE OF A MERGER SUBMITTED IN REPLY COULD NOT BE CONSIDERED ON THE STANDING ISSUE (SECOND DEPT).

The Second Department, reversing Supreme Court, in a full-fledged opinion by Justice Dillon, determined the notice of foreclosure required by RPAPL 1304, which, to be valid, must state the default amount and length of time the borrower has been in default, was not shown to be inaccurate. But the plaintiff bank did not demonstrate standing […]

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ALTHOUGH THE SECOND ORDER TO SHOW CAUSE SEEKING LEAVE TO FILE A LATE NOTICE OF CLAIM WAS FILED TWO DAYS AFTER THE ONE-YEAR-NINETY-DAY LIMITATIONS PERIOD, THE STATUTE OF LIMITATIONS WAS TOLLED FOR THREE DAYS BETWEEN THE FILING AND THE DENIAL OF THE FIRST ORDER TO SHOW CAUSE; THE MEDICAL RECORDS PROVIDED THE MUNICIPALITY WITH NOTICE OF THE ESSENTAL FACTS OF THE CLAIM; THE MOTION FOR LEAVE TO FILE A LATE NOTICE SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the motion seeking leave to file a late notice of claim was timely and should have been granted. Although the second order to show cause was submitted two days beyond the one year-and-90-day deadline for suing a municipality. the statute of limitations was tolled for three days between […]

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