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THE ERRONEOUS “LOSS OF CHANCE” JURY INSTRUCTION REQUIRED REVERSAL; THE CHARGE USED THE PHRASES “SUBSTANTIAL FACTOR” AND “SUBSTANTIAL PROBABILITY” WHEN THE CORRECT PHRASE IS “SUBSTANTIAL POSSIBILITY” IN REFERENCE TO WHETHER A BETTER OUTCOME WAS DENIED DUE TO A DEVIATION FROM THE STANDARD OF CARE (FOURTH DEPT).

The Fourth Department, reinstating the complaint and ordering a new trial in this medical malpractice action, determined the “loss of chance” jury instruction was erroneous and required reversal: As this Court has held since at least 2011, a “loss of chance instruction” is “entirely appropriate for . . . omission theories” in medical malpractice actions […]

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THE JUDGE’S PROVIDING ERRONEOUS INFORMATION ABOUT THE MAXIMUM SENTENCE DEFENDANT WAS FACING NEED NOT BE PRESERVED FOR APPEAL AND RENDERED THE GUILTY PLEA INVOLUNTARY (THIRD DEPT).

he Third Department, reversing defendant’s conviction by guilty plea, determined the judge’s providing erroneous information about the maximum sentence defendant was facing did not need to be preserved for appeal and rendered the guilty plea involuntary: … County Court advised [defendant] that, if he elected to proceed to trial and was convicted of all offenses […]

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HERE A MOTION TO RENEW AN APPEAL WAS GRANTED AND THE PRIOR APPELLATE DECISION WAS VACATED BASED ON THE ENACTMENT OF THE FORECLOSURE ABUSE PREVENTION ACT (FAPA); THE THIRD DEPARTMENT HAD HELD THE FORECLOSURE ACTION WAS TIMELY BECAUSE THE BANK HAD DE-ACCELERATED THE DEBT; BUT FAPA RENDEREDTHE DE-ACCELERATION INVALID; SO THE INITIAL SUPREME COURT DECISION GRANTING SUMMARY JUDGMENT TO THE DEFENDANTS WAS REINSTATED (THIRD DEPT).

The Third Department granted defendants’ motion to renew an appeal and vacated its prior decision because of the subsequent enactment of the Foreclosure Abuse Prevention Act (FAPA). The Third Department had reversed summary judgment in defendants’ favor on the ground the bank had de-accelerated the debt rendering the foreclosure action timely. But the FAPA now […]

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“NO TRESPASSING” AND “PRIVATE PROPERTY” SIGNS WERE POSTED ON THE PROPERTY WHERE DEFENDANT’S VEHICLE WAS PARKED; THEREFORE THE DEPUTY WHO WALKED UP THE DRIVEWAY TO EXAMINE DEFENDANT’S VEHICLE CONDUCTED AN ILLEGAL, WARRANTLESS SEARCH; THE VEHICLE, DEFENDANT’S STATEMENTS AND THE EVIDENCE SEIZED PURSUANT TO SUBSEQUENT SEARCH WARRANTS SHOULD HAVE BEEN SUPPRESSED; THE VEHICLE HAD BEEN INVOLVED IN A FATAL ACCIDENT AND THE DRIVER HAD FLED THE SCENE (THIRD DEPT).

The Third Department, reversing defendant’s conviction and granting the motion to dismiss, determined the posted “No Trespassing” and “Private Property” signs created “a reasonable expectation of privacy” for the driveway of the property where defendant’s vehicle was parked. Therefore, the deputy who walked up the driveway to examine the defendant’s vehicle conducted an illegal search. […]

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THE TAX APPEALS TRIBUNAL’S DETERMINATION THAT PETITIONERS CANNOT REDUCE THEIR NEW YORK ADJUSTED GROSS INCOME BY THE AMORTIZED PREMIUMS ON THEIR OUT-STATE-BONDS UPHELD (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Fisher, upheld the Tax Appeals Tribunal’s determination that petitioners can not reduce their New York adjusted gross income by amortized premiums on their out-of-state bonds: Petitioners are married and residents of New York. During the years 2012 through 2016 (hereinafter the years at issue), they engaged […]

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THE STATUTE OF LIMITATIONS FOR BREACH OF FIDUCIARY DUTY BEGINS TO RUN WHEN THERE HAS BEEN AN OPEN REPUDIATION OF FIDUCIARY OBLIGATIONS; HERE THERE HAS NOT BEEN SUCH AN OPEN REPUDIATION; THE STATUTE NEVER BEGAN TO RUN AND THE MOTION TO DISMISS THE SHAREHOLDER DERIVATIVE ACTION AS UNTIMELY SHOULD NOT HAVE BEEN GRANTED (THIRD DEPT).

The Third Department, reversing Supreme Court, determined that this shareholder derivative action, which alleged breach of fiduciary duty, should not have been dismissed as time barred. Open repudiation of the the fiduciary obligation, which triggers the running of the statute of limitations, never occurred: To dismiss a cause of action pursuant to CPLR 3211 (a) […]

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MOTHER’S BOYFRIEND, WHO LIVED WITH MOTHER AND DAUGHTER FOR FIVE MONTHS BEFORE ABUSING THE DAUGHTER, MET THE CRITERIA FOR A “PERSON LEGALLY RESPONSIBLE FOR THE CHILD” AND WAS THEREFORE A PROPER PARTY IN THIS ABUSE/NEGLECT PROCEEDING; COMPREHENSIVE TWO-JUSTICE DISSENT (FIRST DEPT).

The First Department, affirming Family Court’s abuse finding against mother’s live-in boyfriend, Robert, over a comprehensive two-justice dissent, determined Roberto met the criteria for “a person legally responsible” for the child, B.F. B.F. alleged Roberto touched her inner thigh and vagina. Both the majority and the dissenters go through the criteria for “a person legally […]

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HERE FATHER MOVED TO DISMISS MOTHER’S PETITION TO MODIFY CHILD SUPPORT AT THE CLOSE OF MOTHER’S PROOF; AT THAT STAGE OF THE PROCEEDINGS THE COURT MUST ACCEPT PETITIONER’S EVIDENCE AS TRUE AND RESOLVE ALL CREDIBILITY QUESTIONS IN PETITIONER’S FAVOR; THE MOTION TO DISMISS SHOULD NOT HAVE BEEN GRANTED (THIRD DEPT).

he Third Department, reversing Family Court’s dismissal of mother’s petition to modify child support, determined that the judge applied the wrong standard when deciding father’s motion to dismiss at the close of mother’s proof. At that stage the judge must accept petitioner’s evidence as true, and must resolve all credibility issues in petitioner’s favor. The […]

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AN ADMINISTRATIVE PROCEEDING WAS BROUGHT BY THE UNIVERSITY AGAINST PETITIONER-STUDENT BASED UPON ANOTHER STUDENT’S (THE REPORTING INDIVIDUAL’S) ALLEGATIONS SHE WAS SEXUALLY ASSAULTED; THE UNIVERSITY’S TITLE IX GRIEVANCE POLICY PROVIDES THAT WHERE, AS HERE, THE REPORTING INDIVIDUAL IS ABSENT FROM THE HEARING AND IS NOT SUBJECT TO CROSS-EXAMINATION, ANY DETERMINATION BY THE UNIVERSITY CANNOT BE BASED UPON STATEMENTS ATTRIBUTED TO THE REPORTING INDIVIDUAL; THE DETERMINATION WAS ANNULLED ON THAT GROUND (THIRD DEPT).

The Third Department, annulled the university’s determination petitioner had violated the university’s “Community Rights and Responsibilities” by sexually assaulting the reporting individual. Petitioner did not deny kissing an touching the reporting individual, but contended all the interactions were consensual. The reporting individual did not testify at the hearing. The university’s Title IX grievance policy provides […]

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THE NYS DEPARTMENT OF EDUCATION’S CALCULATION OF THE STUDENT TUITION TO BE PAID TO CHARTER SCHOOLS UPHELD (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Ceresia, upheld the NYS Education Department’s calculation of the student tuition to be paid to petitioners, operators of charter schools in New York City. The calculation was not “arbitrary or capricious.” Matter of Coney Is. Preparatory Pub. Charter Sch. v New York State Educ. Dept., 2025 […]

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