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THE JUDGE SHOULD HAVE INQUIRED FURTHER WHEN SEVERAL PROSPECTIVE JURORS INDICATED THEY WOULD BE INCLINED TO BELIEVE THE VICTIM IN THIS SEXUAL ABUSE CASE, NEW TRIAL ORDERED (FIRST DEPT).

The First Department, reversing defendant’s sexual-abuse conviction, determined the judge should have inquired further when several prospective jurors indicated they would be inclined to believe the victim: PROSPECTIVE JUROR [Mr. L.]: … I would say that I do think that there is a lot of disincentives to come forward at all. And to come forward […]

PLAINTIFF FELL LEAVING AN ELEVATOR HE HAD JUST MODIFIED TO PREVENT ACCESS TO A FLOOR; HIS WORK WAS NOT ROUTINE MAINTENANCE; INDUSTRIAL CODE PROVISIONS ABOUT GUARDING HAZARDOUS OPENINGS APPLIED; ONE DEFENDANT MAY BE LIABLE AS A STATUTORY AGENT; LABOR LAW 200, 240(1) AND 241(6) CAUSES OF ACTION SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT). ​

The First Department, reversing (modifying) Supreme Court, determined: (1) plaintiff’s work on the elevator was not routine maintenance and therefore Labor Law 240(1) and 241(6) were applicable; (2) the Labor Law 241(6) cause of action based on Industrial Code provisions requiring the guarding of hazardous openings should not have been dismissed; and (3) there are […]

BOTH THE INDICTMENT AND THE SUPERIOR COURT INFORMATION CHARGED CRIMES WITH THE ELEMENT THAT THE VICTIM WAS LESS THAN 17; BOTH HAD THE WRONG BIRTH DATE FOR THE VICTIM WHICH THEREBY ALLEGED THE VICTIM WAS MORE THAN 17; THAT IS A JURISDICTIONAL DEFECT WHICH CANNOT BE CORRECTED BY AMENDMENT (THIRD DEPT). ​

The Third Department, reversing the conviction and dismissing the superior court information, determined that both the indictment and the subsequent superior court information were jurisdictionally defective. Both charged sexual offenses with the victim being less than 17 years old as an element. Both had the wrong birth date for the victim, which placed the victim’s […]

COUNTY COURT SHOULD NOT HAVE ACCORDED ANY WEIGHT TO AN OFF-THE-RECORD “CONDITION” THAT THE PEOPLE WOULD WITHDRAW THEIR CONSENT TO THE PLEA OFFER IF YOUTHFUL OFFENDER STATUS WERE GRANTED; ALTHOUGH THE PEOPLE CAN BARGAIN FOR SUCH A CONDITION, THERE WAS NOTHING ON THE RECORD ABOUT IT; SENTENCE VACATED AND MATTER REMITTED FOR CONSIDERATION OF THE FACTORS FOR A YOUTHFUL OFFENDER ADJUDICATION (THIRD DEPT).

The Third Department, vacating the sentence and remitting the matter, determined County Court failed to consider the relevant factors for adjudicating defendant a youthful offender. Instead the court did not consider the issue at all based on its understanding the People would withdraw their consent to the  plea offer if youthful offender status were granted. […]

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THE “SPECIAL CIRCUMSTANCES” WHICH MAY HAVE JUSTIFIED AWARDING CUSTODY OF THE CHILD TO THE GRANDPARENTS APPLIED ONLY TO FATHER AND NOT AT ALL TO MOTHER; FOR THAT REASON THE GRANDPARENTS’ PETITION FOR CUSTODY OF THE CHILD SHOULD NOT HAVE BEEN GRANTED (THIRD DEPT).

​The Third Department, reversing (modifying) Family Court, determined the grandparents’ petition for custody of the child should not have been granted. Father has a criminal history and has been incarcerated. He was arrested with the child and drug paraphernalia in his car, where he was found asleep. Mother has no criminal history and no drug […]

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THE CITY FIREFIGHTERS WHO, AS ESSENTIAL EMPLOYEES, WERE REQUIRED BY EXECUTIVE ORDER TO WORK DURING THE PANDEMIC, SOUGHT TIME-OFF OR MONETARY COMPENSATION EQUIVALENT TO THE TIME-OFF AFFORDED THE NONESSENTIAL CIVILIAN EMPLOYEES WHO WERE SENT HOME DURING THE PANDEMIC PURSUANT TO THE SAME THE EXECUTIVE ORDER; THE THIRD DEPARTMENT DETERMINED ARBITRATION OF THE ISSUE WAS PRECLUDED BY PUBLIC POLICY (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the city firefighters’ claim to entitlement to time off from work or monetary compensation equivalent to the time-off afforded the civilian employees ordered to stay home (due to COVID) was prohibited by public policy. The firefighters were deemed essential employees and were required to report to work by […]

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PLAINTIFF STATED A CAUSE OF ACTION FOR BREACH OF THE PHYSICIAN-PATIENT PRIVILEGE, A TORT (THIRD DEPT).

The Third Department, reversing Supreme Court, determined plaintiff stated a cause of action for breach of the physician-patient privilege (CPLR 4504(a)). Plaintiff was a resident at the State College of Veterinary Medicine at Cornell University. During her residency plaintiff was treated by defendant Witlin, a psychiatrist. In a conversation with a staff psychologist at the […]

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RESPONDENTS’ PARTICIPATION IN THE PORTION OF THE ARBITRATION WHICH DEALT WITH THE USE OF ESCROW FUNDS TO REPAIR CONDOMINIUM SWIMMING POOLS WAIVED ANY CHALLENGE TO THE ARBITRABILITY OF THE ISSUE (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, determined respondents waived the ability to challenge the arbitrability of damage to swimming pools in this action seeking to use escrow funds for condominium repairs. The swimming pools were not on the “punch list” of items to be repaired using the escrow funds. But respondent Katz participated in […]

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A JAIL PHONE CALL IN WHICH DEFENDANT SAID HE MIGHT PLEAD GUILTY SHOULD NOT HAVE BEEN ADMITTED BECAUSE ITS PREJUDICIAL EFFECT OUTWEIGHED ANY PROBATIVE VALUE; THE PROSECUTOR’S SUMMATION REFERENCE TO THE PORTION OF THE PHONE CALL IN WHICH DEFENDANT SAID HE NEEDED A “PAID LAWYER” WAS AN IMPROPER USE OF THE RIGHT TO COUNSEL AGAINST THE DEFENDANT; NEW TRIAL ORDERED (THIRD DEPT).

The Third Department, reversing defendant’s conviction and ordering a new trial, determined a jail phone call in which defendant said he might plead guilty was inadmissible. In addition the prosecutor’s comment on summation that defendant said (in that jail phone call) he needed a “paid lawyer” was an improper reference to defendant’s right to counsel: […]

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THE CORRECTION LAW DOES NOT REQUIRE AN INMATE RESIDENTIAL TREATMENT FACILITY (RTF) TO PROVIDE SEX OFFENDERS WHO ARE ABOUT TO BE RELEASED WITH REINTEGRATION PROGRAMS IN THE OUTSIDE COMMUNITY, AS OPPOSED TO WITHIN THE PRISON (THIRD DEPT). ​

The Third Department, reversing (modifying) Supreme Court, determined the “residential treatment facility” (RTF) within the Fishkill Correctional Facility complied with the Correction Law. Plaintiffs alleged Fishkill did not provide sufficient opportunities outside the prison facility for reintegrating inmates into the community. Supreme Court agreed. The Third Department held that the Correction Law does not indicate […]

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