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CLAIMS AGAINST DEFENDANT NURSING HOME SOUNDED IN MEDICAL MALPRACTICE AND IN NEGLIGENCE, REQUIRING ANALYSES USING DIFFERENT CRITERIA; SOME CAUSES OF ACTIONS SHOULD HAVE BEEN DISMISSED (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined some of plaintiff’s causes of action alleging medical malpractice and negligence against defendant nursing home should have been dismissed. The complaint alleged plaintiff’s decedent, a double amputee, was left unsupervised and fell from his bed. The Fourth Department noted the complaint alleged claims sounding in medical malpractice […]

THE 2012 SENTENCE IMPOSED WITHOUT CONSIDERING WHETHER DEFENDANT SHOULD BE AFFORDED YOUTHFUL OFFENDER STATUS WAS NOT ILLEGAL OR UNAUTHORIZED UNDER THE LAW IN EFFECT AT THE TIME; THEREFORE A MOTION TO VACATE THE SENTENCE ON THAT GROUND IS NOT AVAILABLE (THIRD DEPT).

The Third Department, reversing Supreme Court, in a full-fledged opinion by Justice Aarons, determined the defendant’s motion to vacate his 2012 conviction because the sentencing court did not consider whether he should be afforded youthful offender status should not have been granted. At the time the law was changed to require consideration of youthful offender […]

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THE PURCHASE OF A CHECK CASHING BUSINESS DID NOT TRANSFER THE UNEMPLOYMENT INSURANCE OBLIGATIONS OF THE SELLER TO THE PURCHASER; THE LABOR LAW 581 CRITERIA FOR THE TRANSFER OF UNEMPLOYMENT INSURANCE OBLIGATIONS WERE NOT MET (THIRD DEPT).

The Third Department, reversing the Unemployment Insurance Appeal Board, determined the unemployment insurance obligations of PTL Check Cashing Corp. were not transferred to PLS Check Cashiers of New York Inc. when PLS entered an asset purchase agreement with PTL in order to acquire PTL’s license to operate at PTL’s former location in the Bronx: “Labor […]

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THE DIRECTOR OF THE DIVISION OF MINORITY AND WOMEN’S BUSINESS DEVELOPMENT ERRONEOUSLY IGNORED THE EVIDENCE PRESENTED AT THE HEARING BEFORE AN ADMINSTRATIVE LAW JUDGE WHICH DEMONSTRATED PETITIONER MET THE CRITERIA FOR A WOMEN-OWNED BUSINESS ENTERPRISE (WBE) (THIRD DEPT).

The Third Department, annulling the determination of the Division of Minority and Women’s Business Development of the Department of Economic Development (the Division), found the petitioner had demonstrated it met the criteria for certification as a woman-owned business enterprise (WBE). In its contrary ruling, the Division erroneously ignored the evidence presented at the hearing before […]

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THE 3RD DEPARTMENT ANNULLED THE DETERMINATION OF THE PUBLIC EMPLOYMENT RELATIONS BOARD (PERB) WHICH FOUND THAT THE FIREFIGHTERS DID NOT DEMONSTRATE THE CITY FAILED TO NEGOTIATE BEFORE UNILATERALLY IMPOSING A SALARY REDUCTION (THIRD DEPT).

The Third Department, reversing the Public Employment Relations Board (PERB), determined the city did not fulfill its obligation to negotiate a change in salary for its firefighters: PERB acknowledged petitioners’ claims that the City made a unilateral determination to end the past practice of paying night differential, check-in pay and holiday pay in calculating regular […]

PETITIONER-POLICE-OFFICER’S SLIP AND FALL ON BLACK ICE WAS A COMPENSABLE ACCIDENT UNDER THE RETIREMENT AND SOCIAL SECURITY LAW BECAUSE THE METEOROLOGICAL CONDITIONS WERE SUCH THAT THE PRESENCE OF BLACK ICE COULD NOT HAVE BEEN ANTICIPATED (THIRD DEPT).

The Third Department, reversing (modifying) the hearing officer’s ruling, determined the petitioner-police-officer’s slip and fall on black ice was a compensable “accident” within the meaning of the Retirement and Social Security Law: Petitioner testified that, while patrolling his assigned area on the evening in question, he observed a group of youths congregating in a local […]

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SENDING THE 90-DAY FORECLOSURE NOTICE TO TWO BORROWERS IN THE SAME ENVELOPE DOES NOT COMPLY WITH THE REQUIREMENTS OF RPAPL 1304, WHICH IS A CONDITION PRECEDENT TO A FORECLOSURE ACTION; BECAUSE THE NOTICE WAS NOT SENT TO EACH BORROWER IN A SEPARATE ENVELOPE THE FORECLOSURE ACTION WAS PROPERLY DISMISSED (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Wooten, over a strong dissent, determined RPAPL 1304 requires that the 90-day notice of foreclosure proceedings be sent to each borrower in separate envelopes. Here a single envelope with the RPAPL 1304 notice addressed to both borrowers did not comply with the statute and the foreclosure […]

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THE “BUILDING” DEFENDANTS AND THE COMPANY WHICH INSTALLED AND MAINTAINED THE AIR CONDITIONING UNIT WHICH ALLEGEDLY LEAKED WATER ON THE FLOOR WERE NOT ENTITLED TO SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE; THE LANDLORD DID NOT DEMONSTRATE IT WAS AN OUT-OF-POSSESSION LANDLORD; THE “BUILDING” DEFENDANTS DID NOT DEMONSTRATE THEY DID NOT HAVE ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF THE CONDITION; AND THE COMPANY WHICH INSTALLED AND MAINTAINED THE AIR CONDITIONER DID NOT SHOW IT DID NOT LAUNCH AND INSTRUMENT OF HARM (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the summary judgment motions by several defendants in this slip and fall case should not have been granted in this slip and fall case. Plaintiff alleged she slipped on water dripping from and air conditioning unit in the break room. The landlord did not demonstrate it was an […]

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ALTHOUGH THE COMPLAINANT WAS USING ONLY HIS FISTS FIGHTING THE MUCH SMALLER DEFENDANT, THE DEFENDANT WAS ENTITLED TO THE DEADLY-FORCE-JUSTIFICATION-DEFENSE JURY INSTRUCTION (SECOND DEPT).

The Second Department, over a strong dissent, reversing defendant’s conviction, determined defendant’s request for a deadly-force-justification-defense jury instruction should have been granted. The person with whom defendant was fighting, Gibson, was five inches taller and 66 pounds heavier than defendant. Gibson testified the defendant struck him with a hammer and a meat cleaver. Although Gibson […]

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DEFENDANT SHOULD HAVE BEEN ALLOWED TO WITHDRAW HIS GUILITY PLEA; THE WAIVER OF APPEAL DID NOT PRECLUDE AN APPEAL ALLEGING THE GUILTY PLEA WAS INVALID (SECOND DEPT).

The Second Department, reversing County Court, over a dissent, determined defendant should have been allowed to withdraw his guilty plea. The court noted that the defendant’s waiver of appeal did not preclude an appeal alleging the guilty plea was not valid: … [T]he defendant secured new counsel and made a written motion to withdraw his […]

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