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INCLUSORY CONCURRENT COUNTS DISMISSED; POSSESSION OF A WEAPON SENTENCE SHOULD BE CONCURRENT WITH THE ATTEMPTED MURDER AND ASSAULT SENTENCES (SECOND DEPT).

The Second Department determined three inclusory concurrent counts must be dismissed and the possession of a weapon sentence should run concurrently with the attempted murder and assault sentences: … [T]he defendant’s convictions of assault in the second degree under Penal Law § 120.05(1) and (2) must be dismissed as lesser included concurrent counts of assault […]

THE COURT WAS NOT AUTHORIZED TO SENTENCE DEFENDANT AS A SECOND VIOLENT FELONY OFFENDER BECAUSE DEFENDANT WAS CONVICTED OF AN A FELONY; THE LENGTH OF DEFENDANT’S SENTENCE, HOWEVER, IS NOT AFFECTED (SECOND DEPT).

The Second Department noted the court was not authorized to sentence defendant as a second violent felony offender because he was convicted of an A felony: … [T]he Supreme Court was not authorized to adjudicate the defendant a second violent felony offender, as the instant conviction was for a class A felony rather than a […]

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CYNTHIA G SHOULD NOT HAVE BEEN INVOLUNTARILY CONFINED BASED UPON A FINDING SHE WAS MENTALLY ILL IN THE ABSENCE OF A HEARING; THE FINDING WAS MADE BASED SOLELY UPON CYNTHIA G’S BEHAVIOR IN THE COURTROOM; ALTHOUGH CYNTHIA G HAS BEEN RELEASED THE APPEAL WAS HEARD AS AN EXCEPTION TO THE MOOTNESS DOCTRINE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined Supreme Court should not have ruled Cynthia G was mentally ill based solely on her behavior in the courtroom without holding a hearing. Although Cynthia G has been released from the involuntary confinement ordered by Supreme Court, the appeal was heard as an exception to the mootness doctrine […]

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FEDERAL TAX RETURNS AND EMAILS DID NOT CONSTITUTE DOCUMENTARY EVIDENCE WITHIN THE MEANING OF CPLR 3211 (A)(1); THE MOTION TO DISMISS BASED ON DOCUMENTARY EVIDENCE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion to dismiss based upon documentary evidence pursuant to CPLR 3211 (a)(1) should not have been granted. Defendants submitted federal income tax returns to demonstrate the amount owed under the contract at issue: In considering a motion to dismiss a complaint pursuant to CPLR 3211(a)(1), “the documentary […]

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DEFENDANT GROCERY STORE’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED; DEFENDANT POINTED TO GAPS IN PLAINTIFF’S PROOF INSTEAD OF AFFIRMATIVELY SHOWING IT DID NOT CREATE THE CONDITION (WATER ON THE FLOOR IN FRONT OF A VEGETABLE DISPLAY WITH MELTING ICE) (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant grocery store’s motion for summary judgment in this slip and fall case should not have been granted. Defendant did not affirmatively demonstrate the water on the floor did not come from melted ice in adjacent vegetable display. A defendant can not win summary judgment by pointing to […]

THE SATISFACTION OF MORTGAGE ON RECORD WHEN DEFENDANT BANK ISSUED A LOAN SECURED BY THE PROPERTY WAS FORGED AND THEREFORE VOID; DEFENDANT BANK, THEREFORE, WAS NOT PROTECTED AS A BONA FIDE ENCUMBRANCER FOR VALUE PURSUANT TO REAL PROPERTY LAW 266 (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined Flagstar Bank was not protected as a bona fide encumbrancer for value under Real Property Law 266. The satisfaction of mortgage that was on record when Flagstar issue a loan secured by the property was forged and therefore void, not voidable: We disagree with the Supreme Court’s determination that […]

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THE MAJORITY FOUND PLAINTIFF’S EXPERT’S AFFIDAVIT, ALLEGING PLAINTIFF’S DECEDENT WAS GIVEN TOO MUCH MORPHINE, WAS SPECULATIVE AND CONCLUSORY; TWO DISSENTERS DISAGREED; THE DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION WAS PROPERLY GRANTED (SECOND DEPT).

The Second Department, affirming Supreme Court, over a two-justice partial dissent, determined the defendants’ motion for summary judgment in this medical malpractice action was properly granted. The dissenters argued there was a question of fact about whether plaintiff’s decedent was given too much morphine, but the majority found plaintiff’s expert’s affidavit speculative and conclusory on that […]

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STATEMENTS THAT PLAINTIFF’S DECEDENT SIGNED AN “AGAINST MEDICAL ADVICE” FORM BEFORE REFUSING TREATMENT WHICH WERE INCLUDED IN MEDICAL RECORDS AND IN THE DEPOSITIONS OF THE DOCTORS IN THIS MEDICAL MALPRACTICE ACTION WERE NOT ADMISSIBLE AS BUSINESS RECORDS, AS ADMISSIONS, AS DECLARATIONS AGAINST INTEREST, OR PURSUANT TO THE DEAD MAN’S STATUTE; DEFENSE VERDICT REVERSED AND NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing the defendants’ verdict and ordering a new trial in this medical malpractice case, determined the statements in the medical records and in depositions that plaintiff’s decedent signed an “against medical advice” (AMA) form and refused admission to the hospital constituted inadmissible hearsay and were not admissible pursuant to the Dead Man’s Statute […]

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PLAINTIFF FAILED TO DEMONSTRATE THE SEPARATION AGREEMENT WAS UNCONSCIONABLE AS A MATTER OF LAW; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the plaintiff failed to demonstrate the separation agreement was unconscionable as a matter of law and plaintiff’s motion for summary judgment, therefore, should not have been granted. The court outlined the analytical criteria for unconscionability in this context: “A separation agreement or stipulation of settlement which is fair […]

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ALLEGED CONTRACTS FOR THE SALE OF REAL PROPERTY DID NOT SATISFY THE STATUTE OF FRAUDS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the alleged agreements to sell real property did not satisfy the statute of frauds: “Pursuant to General Obligations Law § 5-703(2), a contract for the sale of real property ‘is void unless the contract or some note or memorandum thereof, expressing the consideration, is in writing, subscribed by […]

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