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THE DISCIPLINARY PROCEEDINGS AGAINST A TOWN POLICE OFFICER ARE CONTROLLED BY THE TOWN LAW AND THE TOWN POLICE MANUAL, NOT THE CIVIL SERVICE LAW AND COLLECTIVE BARGAINING AGREEMENT (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the disciplinary proceedings against a town police officer are controlled by the Town Law and the town police manual, not by the Civil Service Law and the collective bargaining agreement (CBA): … [W]e agree with respondents that the disciplinary procedures set forth in the police manual are controlling, […]

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DEFENDANT PROPERTY OWNER DEMONSTRATED IT DID NOT CREATE OR HAVE ACTUAL NOTICE OF THE DANGEROUS CONDITION (A DEFECTIVE RAILING ON A SECOND-STORY BALCONY); HOWEVER, THERE WAS A QUESTION OF FACT WHETHER A LETTER FROM THE VILLAGE CODE ENFORCEMENT OFFICER SHOULD HAVE TRIGGERED AN INSPECTION OF THE PROPERTY (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined defendant’s motion for summary judgment dismissing the cause of action alleging defendant created or had actual notice of the dangerous condition should have been granted. The facts are not described, but apparently a railing on plaintiff’s second-story balcony gave way and he fell to the ground. However, […]

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THE DEFECTIVE-DESIGN CAUSE OF ACTION AGAINST THE SELLERS OF A TRUCK WHICH DID NOT HAVE A BACK-UP ALARM SHOULD NOT HAVE BEEN DISMISSED; THE PURCHASER OF THE TRUCK TESTIFIED HE WAS NOT AWARE THE OPTION WAS AVAILABLE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the defective-design cause of action against the defendant sellers of a truck should not have been dismissed. The truck was purchased by plaintiff’s employer who testified he did not know a back-up alarm was an available option. Plaintiff was run over as the truck backed up: Where, as […]

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THE ARGUMENT THAT THE PROBATION OFFICER’S SEARCH OF DEFENDANT’S RESIDENCE WAS UNLAWFUL AND UNREASONABLE BECAUSE IT WAS BASED SOLELY ON AN UNCORROBORATED ANONYMOUS TIP WAS NOT PRESERVED FOR APPEAL, THE DISSENT DISAGREED; DEFENDANT DID NOT DEMONSTRATE DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO PRESERVE THE ISSUE (FOURTH DEPT).

The First Department, over a dissent, determined the issue whether the probation officer’s search of defendant’s residence was improperly based solely on an anonymous tip was not preserved for appeal. In addition, the defendant did not demonstrate defense counsel was ineffective for failing to preserve the issue. The dissent argued the record did not support […]

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THERE WAS INSUFFICIENT EVIDENCE DEFENDANT PARTICIPATED IN THE MUGGING, INSUFFICIENT EVIDENCE THE VICTIM SUFFERED PHYSICAL INJURY, AND INSUFFICENT EVIDENCE DEFENDANT CONSTRUCTIVELY POSSESSED THE VICTIM’S WALLET AND CELL PHONE (THIRD DEPT).

The Third Department, reversing defendant’s convictions, determined the convictions were not supported by legally sufficient evidence and were against the weight of the evidence. The victim said he was mugged by three men and his wallet and cell phone were stolen. The police were able to track the cell phone and, based on the tracking […]

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CLAIMANT-INMATE’S ACTION AGAINST THE STATE ALLEGING HE WAS BEATEN BY CORRECTIONS OFFICERS SHOULD NOT HAVE BEEN DISMISSED; THERE WERE QUESTIONS OF FACT ABOUT WHETHER THE OFFICERS WERE ACTING WITHIN THE SCOPE OF THEIR EMPLOYMENT AT THE TIME OF THE BEATING (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Clark, reversing the Court of Claims, over a two-justice dissent, determined the claimant-inmate’s action alleging claimant was beaten by corrections officers after lodging a complaint against one of the officers (Poupore) should not have been dismissed. The Court of Claims ruled the state could not be […]

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ALTHOUGH THE RESPONDENT-SEX-OFFENDER WAS PROPERLY ALLOWED TO REPRESENT HIMSELF IN THE CIVIL COMMITMENT PROCEEDING, HE SHOULD NOT BE ALLOWED TO CROSS-EXAMINE THE WITNESSES WHO WERE VICTIMS OF HIS SEX OFFENSES (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Clark, reversing Supreme Court, determined the respondent-sex-offender in this civil commitment proceeding, who was properly allowed to represent himself with a Mental Hygiene Legal Service (MHLS) attorney as stand-by counsel, should not be allowed to cross-examine the witnesses who had been victims of the respondent’s offenses. […]

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OWNERS OF BUSINESSES IN THE VICINITY OF THE PROPOSED CONSTRUCTION ALLEGED DECREASED PARKING SPACES, INCREASED TRAFFIC CONGESTION AND THE BLOCKING OF SCENIC VIEWS AS REASONS FOR OVERTURNING THE SEQRA NEGATIVE DECLARATION ALLOWING THE CONSTRUCTION; THE BUSINESS OWNERS DID NOT HAVE STANDING TO CONTEST THE DECLARATION (THIRD DEPT).

The Third Department upheld the negative SEQRA (State Environmental Quality Review Act) declaration approving the construction of a mixed use structure which would reduce the number of parking spaces available in Oneonta. The fact that the petitioners owned businesses in the vicinity of the new construction did not confer standing to contest the negative declaration: […]

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WRONGFUL DEATH PROCEEDS BELONG TO THE DISTRIBUTEES, NOT THE ESTATE; THEREFORE, RATHER THAN DIVIDING THE PROCEEDS EQUALLY, SURROGATE’S COURT MUST CONDUCT A HEARING AND DISPURSE THE PROCEEDS BASED UPON PECUNIARY LOSS (FIRST DEPT).

The First Department, reversing Surrogate’s Court, noted that the proceeds of a wrongful death action belong to the distributees, not the estate. Therefore the proceeds should not be divided equally among the distributees: Petitioners commenced this proceeding in Surrogate Court seeking judicial allocation and distribution of the settlement proceeds resulting from a Supreme Court wrongful […]

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PLAINTIFF TESTIFIED IT HAD RAINED FOR ONLY FIVE MINUTES BEFORE SHE SLIPPED AND FELL ON WATER ON THE FLOOR; THEREFORE HER TESTIMONY ESTABLISHED DEFENDANTS DID NOT HAVE CONSTRUCTIVE NOTICE OF THE CONDITION (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this slip and fall case should have been granted. Plaintiff testified it had only begun raining five minutes before she slipped and fell on water on the floor, which she did not see until after she fell: Defendants established prima facie that […]

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