The Second Department, vacating the assault second conviction, determined the evidence of “serious physical injury” was insufficient: The Legislature has defined the term “[s]erious physical injury” to mean “physical injury which creates a substantial risk of death, or which causes death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment […]
The Second Department, reversing the conviction, over a dissent, determined the defendant should not have been removed form the courtroom without first issuing a warning. The defendant was removed after disrupting the court as the verdict was being delivered: After the jury foreperson announced “guilty” on the final charge (count 4) of criminal possession of […]
The Second Department, reversing Supreme Court, in an action seeking to enforce affidavits of confession of judgment, determined the motion to quash information subpoenas should not have been granted: … Supreme Court improvidently exercised its discretion in granting the defendants’ motion to quash the information subpoenas. CPLR 5223 compels disclosure of “all matter relevant to the […]
The Second Department, in a full-fledged, comprehensive opinion by Justice Roman which cannot be fully summarized here, reversing Supreme Court, determined a false imputation of homosexuality is not defamation per se. Therefore the defamation cause of action, which did not allege special damages, should have been dismissed (defamation per se does not require special damages): […]
The Second Department, reversing Supreme Court, determined the bank did not demonstrate standing with admissible evidence and the lost note affidavit was insufficient: … [T]he only business record entered into evidence to support DeCaro’s [plaintiff’s loan verification consultant’s] testimony that the plaintiff was in possession of the note on the date of commencement was plaintiff’s Exhibit […]
The Second Department, reversing Supreme Court, determined the bank’s motion for summary judgment in this foreclosure action should not have been granted because of an informal judicial admission made by plaintiff’s former counsel. The admission raised a question of fact whether the note and mortgage had been superseded by a loan modification: … [T]he averment […]
The Second Department, reversing Supreme Court, determined the village’s motion for summary judgment in this bicycle-related injury case should not have been granted. Plaintiff alleged a road defect caused his accident. The village demonstrated it did not have written notice of the defect but failed to demonstrate it did not create the defect: “[T]he prima […]
The Second Department, in a full-fledged, comprehensive opinion by Justice Scheinkman, determined the resolution by the NYC Board of Health mandating vaccination against measles was lawful and valid and did not violate petitioners’ freedom of religion. As a threshold matter the court considered the matter as an exception to the mootness doctrine, because measles outbreaks […]
The Second Department, reversing Supreme Court, determined defendant should have been allowed to amend the answer to assert the lack-of-standing defense and plaintiff bank did not demonstrate standing with admissible evidence: “In the absence of prejudice or surprise resulting directly from the delay in seeking leave, applications to amend or supplement a pleading are to […]
The Second Department, reversing Supreme Court, determined the plaintiff’s motion to vacate the conditional order of dismissal should have been granted because the conditions in CPLR 3216 were not met by the order: “CPLR 3216 permits a court, on its own initiative, to dismiss an action for want of prosecution where certain conditions precedent have […]
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