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CLAIMANT FIREFIGHTER DEMONSTRATED HIS PTSD IS RELATED TO THE HORRIFIC INJURIES AND DEATHS HE WITNESSED DOING HIS JOB; WORKERS’ COMPENSATION BOARD REVERSED (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined claimant firefighter demonstrated his PTSD is related to the horrific injuries and deaths he witnessed doing his job: … [W]here a firefighter “files a claim for mental injury premised upon extraordinary work-related stress incurred in a work-related emergency, the [B]oard may not disallow the claim, upon […]

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THE “PRECAUTIONARY ADDENDUM,” ALTHOUGH REPEALED, STILL MAY BE APPLIED TO WILLS OF PERSONS WHO DIED BEFORE MARCH 1, 1964, TO PRECLUDE INHERITANCE BY ADOPTED CHILDREN IF THE ACT OF ADOPTION WAS DESIGNED TO CUT OFF OTHER BENEFICIARIES; HERE THE SHARES OF THE OTHER BENEFICIARIES WERE DIMINISHED BUT NOT CUT OFF BY THE INCLUSION OF THE ADOPTED CHILDREN; THEREFORE THE PRECAUTIONARY ADDENDUM DID NOT APPLY (THIRD DEPT).

The Third Department determined the statutory (former Domestic Relations Law 117) “cautionary addendum” did not apply to exclude the adopted children of the decedent’s daughter as beneficiaries of a trust. The cautionary addendum (which, although repealed, can apply to the will of a person who died before March 1, 1964) applies only where the act […]

THE MAJORITY CONCLUDED JUROR 15 WAS ONE OF TWO JURORS WHO GAVE A NON-VERBAL ASSURANCE HE WOULD NOT HOLD IT AGAINST THE DEFENDANT IF HE DID NOT TESTIFY; THE DISSENT ARGUED THE RECORD DOES NOT IDENTIFY JUROR 15 AS ONE OF THE TWO JURORS AND DID NOT DESCRIBE THE NATURE OF THE NON-VERBAL ASSURANCE (FOURTH DEPT).

The Fourth Department, over a dissent, determined that a juror gave a non-verbal assurance that he would not hold it against the defendant if he did not testify. The dissent argued the record did not clearly indicate which jurors gave the non-verbal assurance: We disagree with the dissent that “[t]here is no indication in the […]

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ALTHOUGH THE TRUSTEE DID NOT PROVIDE AN ACCOUNTING, HE NEVER REPUDIATED HIS FIDUCIARY DUTIES; THEREFORE THE SIX-YEAR STATUTE OF LIMITATIONS FOR AN ACCOUNTING WAS NOT TRIGGERED (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined the cause of action for an accounting of a trust should not have been limited to the six years before the filing of the complaint. Although the trustee did not provide a requested accounting. the trustee did not openly repudiate his fiduciary duties, so the six-year statute […]

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THE WARRANTLESS SEARCH OF THE RESIDENCE WAS NOT JUSTIFIED BY THE EMERGENCY EXCEPTION TO THE WARRANT REQUIREMENT (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction and dismissing the indictment, determined the warrantless search of defendant’s residence by an evidence technician was not justified under the emergency exception to the warrant requirement. A woman called 911 and reported she had found her roommate unconscious in the residence. When the evidence technician arrived she was told […]

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THE JURY’S FINDING THAT THE VICTIM SUFFERED “SERIOUS INJURY” WITHIN THE MEANING OF THE ASSAULT SECOND STATUTE WAS AGAINST THE WEIGHT OF THE EVIDENCE (FOURTH DEPT).

The Fourth Department, reversing defendant’s assault second conviction, determined the jury’s conclusion that the victim suffered “serious injury” was against the weight of the evidence: Although the victim testified that he sustained a skull fracture … , the People also introduced expert medical testimony establishing that he did not have a skull fracture. In addition, […]

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PLAINTIFF’S SON SUFFERED A BROKEN JAW IN A COLLISION WITH ANOTHER STUDENT DURING A GYM-CLASS TOUCH FOOTBALL GAME; THERE WERE QUESTIONS OF FACT WHETHER SUCH A COLLISION WAS FORESEEABLE AND WHETHER INADEQUATE SUPERVISION WAS THE PROXIMATE CAUSE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the school’s motion for summary judgment in this negligent supervision action shiould not have been granted. Plaintiff’s son, a high school freshman, suffered a broken jaw during a touch football game during gym class when a taller student collided with him. The students were to call their own […]

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ALTHOUGH THE PRE-ANSWER MOTION TO DISMISS THE ARTICLE 78 PETITION WAS PROPERLY DENIED, THE COURT SHOULD NOT HAVE GRANTED THE PETITION WITHOUT AFFORDING THE RESPONDENTS THE OPPORTUNITY TO ANSWER IT (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court. determined the granting of the Article 78 petition after denying a pre-answer motion to dismiss was not proper: In a CPLR article 78 proceeding, once such a “motion is denied, the court shall permit respondent to answer, upon such terms as may be just” (CPLR 7804 [f]). Here, […]

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ALTHOUGH THE MAJORITY AFFIRMED DEFENDANT’S CONVICTION, THE TWO DISSENTERS WOULD HAVE DISMISSED THE INDICTMENT BECAUSE THE TESTIMONY OF THE POLICE OFFICERS AT THE SUPPRESSION HEARING DESCRIBING THE TRAFFIC STOP WAS NOT CREDIBLE (FOURTH DEPT).

The Fourth Department, affirming defendant’s conviction, rejected the argument that the police officer’s testimony at the suppression hearing describing the traffic stop was incredible. The two-justice dissent disgreed: From the dissent: … [W]e conclude that “the significant inconsistencies and gaps in memory . . . [in] the testimony of the police officers who testified at […]

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FOR PURPOSES OF CLAIMANT’S ACTION FOR WRONGFUL CONVICTION AND IMPRISONMENT, THE TRIAL ORDER OF DISMISSAL IN THE CRIMINAL TRIAL WAS THE EQUIVALENT OF AN ACQUITTAL (FOURTH DEPT).

The Fourth Department, reversing the Court of Claims, determined the claimant was retried and acquitted on criminal charges within the meaning of the Court of Claims Act in this action seeking damages for wrongful conviction and imprisonment: … [T]he court erred in determining that claimant “was not retried.” To the contrary, the record establishes that […]

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