The Fourth Department noted that comparative negligence is a defense to a Labor Law 241 (6) cause of action. Here plaintiff alleged he slipped and fell on ice and snow in a parking lot which functioned as a passageway and Supreme Court granted plaintiff’s motion for summary judgment. The Fourth Department found defendant had raised […]
The Fourth Department, vacating defendant’s guilty plea, over a two-justice dissent, determined defendant’s motion to suppress based upon the illegal street stop should have been granted. The police may have been justified in a level one (DeBour) inquiry based upon an apparent violation of the open-container law (a can in a paper bag), but the […]
The Fourth Department, in a full-fledged opinion by Justice NeMoyer, determined the City of Rochester Local Law which transferred the power to discipline police officers from the police chief to the Police Accountability Board (PAB) is invalid and cannot be enforced: … [t]he challenged Local Law No. 2 necessarily falls insofar as it takes police […]
The Fourth Department, reversing defendant’s conviction of strangulation second degree, determined the request to instruct the jury to consider the lesser included offense of attempted strangulation second degree should have been granted. There was a reasonable view of the evidence which would have allowed the jury to find the victim did not suffer physical injury: […]
The Fourth Department, reversing (modifying) Surrogate’s Court, determined there were questions of fact about whether three joint bank accounts passed to respondent outside the estate or were part of the estate. The was no evidence of a signature card which included “right of survivorship” language. Respondent argued decedent intended the bank accounts to be gifts […]
The Third Department determined grandmother should have been notified of her right to counsel in this custody case. But the question remains whether grandmother would have qualified (financially) for assigned counsel. The matter was sent back to Family Court to rule on grandmother’s eligibility for assigned counsel: We find merit to the grandmother’s argument that […]
The Second Department, reversing Supreme Court, determined defendant was entitled to a hearing on his motion to vacate his conviction on ineffective assistance grounds. Defendant averred that he was not informed of the risk of deportation associated with his guilty plea: … [I]n the context of a plea of guilty, an attorney’s failure to advise […]
The Second Department, vacating defendant’s guilty plea, determined the plea was not knowingly and voluntarily entered because defendant was not informed of the period of postrelease supervision: … [F]or a plea of guilty to be knowing, intelligent, and voluntary, the court must inform the defendant of either the specific period of postrelease supervision that will […]
The Second Department, reversing Supreme Court, determined the plaintiff in this foreclosure action did not demonstrate compliance with the notice provisions of RPAPL 1304: Although the RPAPL 1304 notices were allegedly mailed from New York by the same law firm that filed the summary judgment motion on behalf of the plaintiff, no one from that […]
The Second Department, reversing Family Court, determined the motion to dismiss the family offense petition for failure to make out a prima facie case should not have been granted, noting that the credibility of the evidence is not a factor to be considered at that stage: In a family offense proceeding, the petitioner has the […]
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