The Second Department, reversing Supreme Court, determined the plaintiff did not demonstrate the slip and fall was caused by a dangerous condition. The walkway where plaintiff fell was wet from rain, which was falling at the time: The mere fact that an outdoor walkway or stairway becomes wet from precipitation is insufficient to establish the […]
The Second Department, reversing Supreme Court, determined the decretal paragraph in the appellate decision remitting the matter to Supreme Court did not impose restrictions on the issues to be retried: “‘A trial court, upon remittitur, lacks the power to deviate from the mandate of the higher court”‘ … . “An order or judgment entered by […]
The Second Department, reversing Supreme Court, determined the judge should not have, sua sponte, imposed an injunction on defendant and determined issues of fact without a motion before the court and without holding a hearing: The Supreme Court, after a status conference … , issued an order, sua sponte, … which, … directed the defendant […]
The Second Department, reversing Supreme Court, determined the judge, sua sponte, should not have increased a penalty to which the parties had stipulated: “A so-ordered stipulation is a contract between the parties thereto and as such, is binding on them and will be construed in accordance with contract principles and the parties’ intent” … . […]
The Second Department, reversing Supreme Court, determined plaintiff bank’s motion for summary judgment in this foreclosure action should not have been granted because compliance with the notice requirements of RPAP 1304 was not demonstrated with admissible evidence: … [T]he plaintiff submitted, inter alia, an affidavit of a business operations analyst employed by the plaintiff, together […]
The Second Department determined the judge should not have, sua sponte, dismissed the complaint in this foreclosure action on the ground the bank did not comply with the notice requirements of RPAL 1304. The defendants defaulted and failure to comply with RPAPL 1304 is not a jurisdictional defect. Therefore it must be raised as a […]
The Fourth Department determined the attempted second degree murder count must be dismissed as an inclusory concurrent count of attempted first degred murder: … [T]he part of the judgment convicting defendant of attempted murder in the second degree must be reversed and count two of the indictment dismissed because attempted murder in the second degree […]
The Second Department, reversing Supreme Court, determined plaintiffs’ cause of action for return of the rent paid to defendant after the plaintiffs exercised their option to purchase the property should have been granted. Plaintiffs were defendant landlord’s tenants. Plaintiffs sought to exercise an option to purchase the property which was in the lease. Once the plaintiffs […]
The Fourth Department, reversing defendant’s assault conviction in the interest of justice and adjudicating defendant a youthful offender, in a full-fledged, comprehensive opinion by Justice Troutman, determined mitigating factors supported youthful offender status. Defendant was attacked by another high school student and didn’t realize the victim, a teacher, had intervened. The defendant injured the teacher’s […]
The Fourth Department, reversing the witness tampering conviction and dismissing the indictment, determined the evidence was legally insufficient: On appeal from a judgment convicting him upon a jury verdict of tampering with a witness in the third degree … , defendant contends that the conviction is based upon legally insufficient evidence. We agree. Although the […]
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