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INFANT PLAINTIFF WAS APPARENTLY INJURED BY HOT COALS LEFT AFTER A FIRE IN A COUNTY PARK; THE NEGLIGENT SUPERVISION CAUSE OF ACTION AGAINST THE COUNTY SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the negligent supervision cause of action against the county should not have been dismissed. Apparently infant plaintiff was injured in a county park by hot coals left after a fire: “While a municipality is not an insurer of the safety of those who use its parks, it does […]

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WHETHER THE DEFENDANT FIRST STOPPED AT THE STOP SIGN OR DROVE THROUGH THE STOP SIGN DOESN’T MATTER BECAUSE EITHER WAY THE VEHICLE AND TRAFFIC LAW WAS VIOLATED; PLAINTIFF’S MOTION TO SET ASIDE THE DEFENSE VERDICT IN THIS INTERSECTION TRAFFIC ACCIDENT CASE SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the motion for a judgment as a matter of law (CPLR 4401) was properly denied, but the motion to set aside the defense verdict in this intersection traffic accident case (CPLR 4404 (a)) should have been granted. Defendant violated the Vehicle and Traffic Law by proceeding into the […]

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MOTION TO VACATE THE NOTE OF ISSUE AND COMPEL DISCOVERY PROPERLY DENIED; MISAPPROPRIATION OF TRADE SECRETS AND BREACH OF A NON-COMPETITION CLAUSE CAUSES OF ACTION SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined: (1) plaintiff’s motion to vacate the note of issue and compel additional discovery was properly denied because the criteria of 22 NYCRR 202.21 were not met; (2) the misappropriation of trade secrets cause of action re: customer lists was properly dismissed; (3) the misappropriation of trade secrets […]

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PLAINTIFF’S SUPPLEMENTAL UNINSURED/UNDERINSURED MOTORIST (SUM) COVERAGE WAS GREATER THAN THE BODILY INJURY COVERAGE IN THE TORTFEASOR’S POLICY; SO THE SUM PROVISION OF PLAINTIFF’S POLICY WAS TRIGGERED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant-insurer’s supplemental uninsured/underinsured motorist (SUM) benefits were triggered in the traffic accident case. The (SUM) coverage under plaintiff’s policy was greater than the bodily injury coverage in the  tortfeasor’s policy. Plaintiff had settled for the tortfeasor’s policy limit and then sought to collect SUM benefits under his policy. Plaintiff’s insurer […]

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THE DUPLICITY IN THE INDICTMENT WAS REMEDIED BY DETAILS PROVIDED TO THE DEFENSE PRIOR TO TRIAL AND BY DETAILED TRIAL EVIDENCE (FOURTH DEPT).

The Fourth Department held the prosecutor had remedied the duplicity in the indictment by providing information in a supplemental bill of particulars and a “trial indictment” after the motion to dismiss for duplicity was made, information corroborated by detailed trial evidence; With respect to the counts of criminal sexual act in the first degree, after […]

DEFENDANT WAS PROPERLY SENTENCED TO INCARCERATION UPON A VIOLATION OF PROBATION IN THIS FELONY DWI CASE, DESPITE DEFENDANT’S COMPLETION OF THE SIX-MONTH PERIOD OF INCARCERATION ORIGINALLY IMPOSED (FOURTH DEPT). ​

The Fourth Department determined defendant was properly sentenced to imprisonment after a violation of probation in this felony DWI case, despite his completion of the original six-month sentence: County Court sentenced defendant to six months of imprisonment and five years of probation on each count. Several years later, after serving the imprisonment portion of his […]

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UNDER THE CIRCUMSTANCES OF THIS CASE, WHETHER THE CONDITIONS PRECEDENT TO ARBITRATION OF A GRIEVANCE REQUIRED BY THE COLLECTIVE BARGAINING AGREEMENT WERE COMPLIED WITH IS A QUESTION FOR THE COURT, NOT THE ARBITRATOR (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined it was for the court, not the arbitrator, to determine whether the conditions precedent for arbitration were met in this action seeking General Municipal Law Section 207-a benefits for an injured firefighter: … [T]he CBA [collective bargaining agreement] contains conditions precedent to arbitration within the provisions addressing the grievance […]

THE CITY MAY NOT CHARGE A FEE FOR REVIEW AND REDACTION OF POLICE BODY-WORN CAMERA FOOTAGE PURSUANT TO A FREEDOM OF INFORMATION LAW (FOIL) REQUEST (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined the city was not entitled to charge a fee for the review or redaction of police body-worn camera (BWC) footage under the Freedom of Information Law (FOIL): … [R]espondents may not charge petitioner a fee for the costs associated with their review or redaction of the BWC […]

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42 USC 1983 CAUSES OF ACTION AGAINST THE SHERIFF AND UNDERSHERIFF IN THEIR OFFICIAL CAPACITIES STEMMING FROM THE SUICIDE OF PLAINTIFFS’ DECEDENT IN THE ERIE COUNTY JAIL SHOULD NOT HAVE BEEN DISMISSED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the 42 USC 1983 causes of action against the sheriff and undersheriff in their official capacities, stemming from plaintiffs’ decedent’s suicide in the Erie County Jail, should not have been dismissed: We agree with plaintiffs that in state court they can assert a section 1983 cause of action […]

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