The Third Department determined the criminal sale of a controlled substance first degree and the related conspiracy convictions were against the weight of the evidence: In a weight of the evidence review, we first determine whether, based on all of the credible evidence, a different finding would have been unreasonable, and, if not, we then […]
The Third Department, reversing the Workers’ Compensation Board, determined the evidence supported a finding that claimant firefighter’s lung cancer and death were caused by exposure to toxins at Ground Zero: The Board found the opinion of Ploss [claimant’s expert] to be incredible in part because he did not “cite to any studies or other evidence […]
The Third Department, over a two-justice dissent, determined petitioner police officer’s injury caused by wind slamming a door on her hand was not an “accident” entitling her to disability benefits: … “[W]hen determining whether a precipitating event was unexpected, [the Comptroller] and courts may … consider whether the injured person had direct knowledge of the […]
The Third Department, reversing (modifying) County Court, determined the risk factors requiring “sexual contact” and a “prior felony or sex crime” were not supported: County Court erred in assessing points under risk factors 4 and 10. The assessment of points under risk factor 4 is warranted where a defendant has engaged in “either (i) two […]
The First Department determined the oral contract was within the statute of frauds because it was not susceptible of performance within one year. Plaintiff alleged he was entitled to 50% of the placement fee received by defendant for job candidates he referred to defendant, even if placement was made after a year: The alleged oral […]
The First Department, in this Article 78 proceeding, noted that no appeal lies from a judge’s declining to sign an order to show cause. The only remedy is a motion to vacate the final judgment: No appeal lies from an order declining to sign an order to show cause, since it is an ex parte […]
The Second Department, over an extensive dissent, determined that the bank (Option One) which commenced foreclosure proceedings in 2006 did not have standing to do so because it had already assigned the note and mortgage (to Residential). Therefore the six-year statute of limitations did not start to run in 2006. The dissent argued Option One, […]
The Second Department, over an extensive two-justice dissent, affirmed defendant’s murder conviction. The majority noted that some of the trial judge’s remarks would have been better left unsaid, but held the judge did not intervene excessively. The dissent disagreed: … [W]hile many of the Supreme Court’s interventions were proper attempts to clarify testimony and facilitate […]
The Second Department determined Supreme Court properly found that defendant had rejected the machines as nonconforming goods, plaintiff did not cure the nonconformity, and defendant was properly awarded consequential damages and lost profits: … [T]he Supreme Court found … the defendant[] demonstrated that the plaintiff had breached express and implied warranties by showing that the […]
The Second Department, reversing Supreme Court, over a dissent, determined the statute of limitations had run on defendant bank’s foreclosure counterclaim. The bank argued that the statute of limitations had been tolled because it was a “mortgagee in possession,” in that it kept tabs on the property and made repairs. The majority held that, in […]
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