The Fourth Department, reversing the judgment, determined defendant’s request to poll the jury should not have been denied: Plaintiff commenced this action seeking damages for, inter alia, assault and battery, and in his amended answer defendant asserted counterclaims for, inter alia, defamation. The matter proceeded to trial, and now plaintiff appeals and defendant cross-appeals from […]
The Fourth Department, reversing Supreme Court, determined an email sent by plaintiff’s attorney constituted an enforceable stipulation of settlement, despite the fact that plaintiff subsequently refused to execute the documents: … [T]he requirements for a valid and enforceable settlement agreement are satisfied here. The email from plaintiff’s lawyer to defendant’s lawyer contained the only two […]
The Fourth Department, reversing (modifying) Supreme Court, determined some of the conditions of probation prohibiting defendant from possessing a computer and cell phone were not warranted. Defendant pled guilty to attempted sexual abuse first degree: In addition to prohibiting defendant from maintaining an account on a social networking site, condition 34 also prohibits defendant from […]
The Fourth Department, reversing Supreme Court, over a dissent, determined the defendant school district demonstrated a student’s sexual assault of plaintiff was not foreseeable: … [D]efendant met its … burden on the motion by establishing that the “sexual assault against [plaintiff by the student] was an unforeseeable act that, without sufficiently specific knowledge or notice, […]
The Fourth Department determined Supreme Court properly ruled defendants could exercise their right of redemption in this foreclosure action without triggering the plaintiff’s contractual right to withhold consent to prepayment: … [D]efendants were not seeking to prepay the amount due under the note, rather plaintiff accelerated the remaining amount due by instituting a foreclosure action […]
The Fourth Department, reversing Supreme Court, determined plaintiff raised a question of fact about whether defendants’ negligence was a proximate cause of plaintiff’s decedent’s fall from her bed in defendants’ nursing home: Plaintiff submitted an expert affidavit from a physician with extensive experience in the treatment of geriatric patients and who is familiar with the […]
The Fourth Department determined plaintiff’s medical (psychiatric) malpractice action properly survived a motion to dismiss. Plaintiff was treated by defendants after he was brought to the hospital by the police pursuant to Mental Hygiene Law 9.41. Plaintiff had threatened family members and killed a dog. Plaintiff was released the same day and shortly thereafter killed […]
The Fourth Department, reversing Supreme Court, determined the failure to produce the child (who allegedly was injured at school recess) for the General Municipal Law 50-h hearing required dismissal of the complaint: “As General Municipal Law § 50-h (5) makes clear on its face, compliance with a municipality’s demand for a section 50-h examination is […]
The Fourth Department, reversing Supreme Court, determined defendants’ discovery requests in this traffic accident case should not have been granted. The requests for defendants’ cell phone records and receipts for food and beverages on the day of the accident were aimed at demonstrating the identity of the driver of defendants’ vehicle. But the identity of […]
The Fourth Department noted that it can not consider an issue which was preserved for appeal but was not ruled upon by County Court. The matter was remitted: Although defendant did preserve his contention concerning facial duplicity by seeking dismissal of the indictment on that ground in the pretrial omnibus motion … , we are […]
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