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THE TRIAL JUDGE SHOULD HAVE PROCEEDED WITH BATSON INQUIRIES FOR THREE BLACK PROSPECTIVE JURORS; BASED ON THE JUDGE’S REMARKS THE MATTER WAS REMITTED FOR A HEARING AND REPORT BEFORE A DIFFERENT JUDGE (SECOND DEPT).

The Second Department determined Supreme Court should have conducted a Batson inquiry with respect to the prosecutor’s exercise of peremptory challenges to three black prospective jurors. The appeal was held in abeyance and the matter was sent back for a hearing and report before a different judge. The trial judge’s remarks about the number of […]

THE DEPARTMENT OF HEALTH’S DETERMINATION THE 91-YEAR-OLD PETITIONER WAS NOT ENTITLED TO CONTINUOUS CARE WAS NOT SUPPORTED BY THE EVIDENCE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the Department of Health’s (DOH’s) finding that the 91-year-old petitioner was not entitled to continuous care was not supported by the evidence: “In reviewing a Medicaid eligibility determination made after a fair hearing, the court must review the record as a whole to determine if the agency’s decisions […]

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THE JUDGE SHOULD NOT HAVE DISMISSED DEFENDANTS’ AFFIRMATIVE DEFENSES BECAUSE PLAINTIFF DID NOT REQUEST THAT RELIEF (SECOND DEPT).

The Second Department noted that the judge should not have ordered relief not requested by the plaintiff: … [T]he Supreme Court erred by, in effect, sua sponte, directing dismissal of all of [defendants’] affirmative defenses to the complaint … . The plaintiff did not move for summary judgment dismissing any of [defendant’s] affirmative defenses, and […]

PETITION SEEKING A SUMMARY INQUIRY PURSUANT TO THE NYC CHARTER INTO THE CIRCUMSTANCES SURROUNDING ERIC GARNER’S ARREST AND DEATH PROPERLY GRANTED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Singh, determined Supreme Court properly granted the petition seeking seeking a “summary inquiry pursuant to NYC Charter section 1109” into the circumstances surrounding the arrest and death of Eric Garner. The opinion is too detailed and comprehensive to fairly summarize here: This appeal from the grant […]

IN THE CONTEXT OF A CONTRACT IMPOSING CAPS FOR “NONWILLFUL” AND “WILLFUL” BREACHES, THE FACT THAT THE BREACH MAY HAVE BEEN DELIBERATE DID NOT RENDER THE BREACH “WILLFUL,” WHICH SHOULD BE INTERPRETED TO REFER TO “TRULY HARMFUL, CULPABLE CONDUCT;” SUPREME COURT REVERSED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the term “willful” in the context of the damages provision of the contract should not be interpreted simply to mean “deliberate,” but rather to refer to “truly culpable, harmful conduct.” Therefore the damages cap for nonwillful breaches applied: In the context of this contract, the term “willful” must […]

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IN THIS “RESIDENTIAL MORTGAGE BACKED SECURITIES” AND “COLLATERALIZED DEBT OBLIGATION” ACTION, PLAINTIFF RAISED QUESTIONS OF FACT ABOUT WHETHER DEFENDANTS’ FRAUD, AS OPPOSED TO THE 2008-2009 FINANCIAL CRISIS, CAUSED PLAINTIFF’S LOSS, AND WHETHER AN OMISSION ON DEFENDANTS’ PART WAS AN ACTIONABLE MISREPRESENTATION; SUPREME COURT REVERSED (FIRST DEPT).

The First Department, reversing Supreme Court, over an extensive dissent, determined defendants’ motion for summary judgment in this “residential mortgage backed securities (RMBS)” and “collateralized debt obligation (CDO)” fraud action should not have been granted. The plaintiff raised questions of fact whether defendants’ fraud, as opposed to the 2008-2009 financial crisis, caused plaintiff’s loss, and […]

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DEFENDANT OWNS A VINEYARD IN WHICH PLAINTIFF WAS INJURED IN AN ALL-TERRAIN-VEHICLE ACCIDENT; DEFENDANT WAS ENTITLED TO IMMUNITY PURSUANT TO GENERAL OBLIGATIONS LAW 9-103 BECAUSE THE VINEYARD WAS “SUITABLE FOR RECREATIONAL USE” (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant’s property (a vineyard) was suitable for recreational use and therefore defendant was entitled to immunity pursuant to General Obligations Law 9-103. Defendant was not liable for plaintiff’s injuries from an all-terrain-vehicle (ATV) accident which occurred when the driver missed a bridge over a culvert: … “[D]efendant, as […]

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ALTHOUGH DOMINICA, THE EXECUTRIX OF JOSEPHINE’S ESTATE, WAS NEVER SUBSTITUTED FOR JOSEPHINE AFTER JOSEPHINE’S DEATH, DOMINICA APPEARED AND ACTIVELY LITIGATED A MOTION TO VACATE; THE FAILURE TO EFFECT SUBSTITUTION IN THAT CIRCUMSTANCE IS A MERE IRREGULARITY; TWO-JUSTICE DISSENT (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, determined the failure to substitute the executrix of Josephine’s estate, Dominica P., after Josephine’s death did not nullify the proceedings. Dominca P appeared and actively litigated a motion to vacate brought by Kathleen. In that circumstance the failure to effect substitution was deemed a mere irregularity: Josephine died […]

PETITIONER’S OBJECTION TO THE SUPPORT MAGISTRATE’S ORDER SHOULD NOT HAVE BEEN DENIED; THE CSSA APPLIES EVEN WHEN THE CHILD RECEIVES PUBLIC ASSISTANCE; DOWNWARD DEVIATION FROM THE PRESUMPTIVE SUPPORT LEVEL IMPROPERLY APPLIED THE PROPORTIONAL OFFSET METHOD (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined petitioner’s objections to the Support Magistrate’s order should not have been denied: It is well settled that “the CSSA [Child Support Standards Act] must be applied to all child support orders, regardless of a child’s receipt of public assistance” … . Here, the Support Magistrate purported to reduce […]

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THE FULL AMOUNT OF THE NOTE WAS NOT RECOVERABLE BECAUSE THERE WAS NO ACCELERATION CLAUSE; CLAIMS FOR UNPAID INSTALLMENTS DUE MORE THAN SIX YEARS BEFORE FILING SUIT WERE TIME-BARRED (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined the full amount of the note could not be recovered because it did not include an acceleration clause. In addition, claims for unpaid installments due more than six years before the filing of the lawsuit were time-barred: “As a general rule, in the absence of an acceleration […]

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