The Second Department, reversing defendant’s assault third conviction, determined the evidence of “physical injury” was legally insufficient: Physical injury is defined as “impairment of physical condition or substantial pain” (Penal Law § 10.00[9]). Although the question of whether physical injury has been established is generally for the jury to decide, “there is an objective level […]
The Second Department, affirming defendant’s murder conviction, over a two-justice dissent, determined Molineux the ruling that defendant could be cross-examined about his three prior gun-related convictions if he were to testify the shooting was an accident did not deprive defendant of the right to put on a defense. The dissenter argued that it did: Prior […]
The Second Department, reversing (modifying) Supreme Court, determined the powers awarded to the guardian of the incapacitated person, Aurelia S, were too broad: … “[T]he determination of incapacity . . . shall consist of a determination that a person is likely to suffer harm because” (1) “the person is unable to provide for [his or her] […]
The Second Department, reversing Supreme Court, determined the bank’s motion for summary judgment should not have been granted in this foreclosure action because compliance with the notice requirements of RPAPL 1304 was not demonstrated: RPAPL 1304 provides that at least 90 days before a lender, an assignee, or a mortgage loan servicer commences an action […]
The Second Department determined a prior appeal in this matter did not trigger the law of the case doctrine: … Supreme Court’s determination that certain causes of action should be dismissed pursuant to CPLR 3211(a) was not precluded by this Court’s determination on a prior appeal that similar causes of action were not palpably insufficient […]
The Second Department determined the town ordinance regulating the discharge setback for a bow and arrow was preempted by the conflicting provisions in Environmental Conservation Law (ECL) 11-0931: The Town incorrectly contends that its ability to regulate the discharge setback of a bow and arrow is expressly authorized by Town Law § 130(27). That statute […]
The Second Department, reversing (modifying) Supreme Court, determined the that action against the abutting landowner (Long Island Rail Road [LIRR} and Metropolitan Transportation Authority [MTA] in this sidewalk slip and fall case was properly dismissed, but the action against the Town should not have been dismissed. Notwithstanding the Town Code, the state Highway Law may […]
The Second Department, reversing Supreme Court, determined there was no need for the defendants to give prior notification to the plaintiff of the defendants’ intent to call one of plaintiff’s treating doctors to testify about the cause of plaintiff’s cognitive deficits in this traffic accident case. The doctor would have testified the deficits were caused by […]
The Second Department determined plaintiff bank’s motion for summary judgment should not have been granted in this foreclosure action. There was a question of fact whether plaintiff complied with the notice requirements of Real Property Actions and Proceedings Law (RPAPL) 1303, and plaintiff did not establish it complied with the notice requirements of RPAPL 1304: […]
The Third Department determined the strip search of defendant, which resulted in the seizure of cocaine, was proper: “[I]t is clear that a strip search must be founded on a reasonable suspicion that the arrestee is concealing evidence underneath clothing and the search must be conducted in a reasonable manner” … . The trooper testified […]
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