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ALTHOUGH THERE WAS NO SCHEDULE LOSS OF USE (SLU) AWARD FOR THE PRIOR (2003) INJURY, THE AMOUNT OF THE AWARD FOR THE CURRENT (2015) INJURY MUST BE REDUCED BY THE LOSS OF USE ATTRIBUTED TO THE PRIOR INJURY (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined the schedule loss of use (SLU) award should have been apportioned between the effects of a prior (2003) injury for which claimant was not compensated and the current (2015) injury to the same body member. The prior injury would have been compensable but for the finding […]

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THE REGULATION REQUIRING NEW YORK HEALTH INSURANCE POLICIES TO COVER MEDICALLY NECESSARY ABORTION SERVICES, WHICH INCLUDES AN EXEMPTION FOR ‘RELIGIOUS EMPLOYERS,’ IS CONSTITUTIONAL AND WAS PROPERLY PROMULGATED (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Colangelo, affirming Supreme Court, determined the regulation requiring health insurance policies in New York to provide coverage for medically necessary abortion services, which includes an exemption for “religious employers,” was properly promulgated and was constitutional. The Court of Appeals decision upholding a similar regulation for prescription contraceptives,  Catholic […]

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ATTEMPTS TO DE-ACCELERATE THE DEBT, INCLUDING VOLUNTARY DISCONTINUANCES AFTER THE DEATH OF THE DEFENDANT, WERE INEFFECTUAL, THE FORECLOSURE ACTION IS TIME-BARRED (THIRD DEPT).

The Third Department, over a two-justice concurrence, determined the statute of limitations began to run in 2009 when the mortgage debt was accelerated in this foreclosure action and the attempts to subsequently de-accelerate the debt after the death of the defendant, including voluntary discontinuances, were ineffectual. Therefore the action was time-barred: With respect to the […]

CLAIMANT ENTITLED TO A SCHEDULE LOSS OF USE (SLU) AWARD DESPITE RETURNING TO WORK AT PREINJURY WAGES (SECOND DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined claimant was entitled to a schedule loss of use (SLU) award even though claimant returned to work at preinjury wages: For the reasons set forth in Matter of Arias v City of New York (182 AD3d 170 [2020]), we find that the Board’s disregard of Matter of Taher v Yiota […]

DEFENDANT’S INTELLECTUAL DISABILITY REQUIRED A MORE PROBING COLLOQUY BEFORE ACCEPTING THE GUILTY PLEA AND THE WAIVER OF APPEAL, PLEA VACATED (SECOND DEPT).

The Second Department, vacating defendant’s guilty plea to murder, in a full-fledged opinion by Justice Manzanet-Daniels, determined defendant’s intellectual disability required a more probing colloquy to ensure defendant understood the ramifications of the plea and the waiver of appeal: Defendant’s psychological assessments cast serious doubt about his ability to enter a knowing and voluntary plea. […]

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ALTHOUGH DEFENDANT COMPLETED HIS SENTENCE HE IS ENTITLED TO A DETERMINATION WHETHER HE SHOULD BE ADJUDICATED A YOUTHFUL OFFENDER; THE ORDER OF PROTECTION EXCEEDED THE STATUTORY TIME LIMIT (SECOND DEPT).

Although defendant had already completed his sentence, the Second Department held he was entitled to a determination whether he should be adjudicated a youthful offender, even if that relief was not requested. In addition, the Second Department noted the order of protection exceeded the maximum time allowed in the Criminal Procedure Law and did not […]

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ALTHOUGH IT WAS ERROR TO DENY THE DEFENSE REQUEST FOR A RODRIGUEZ HEARING BASED UPON THE PROSECUTOR’S ASSERTION THE COMPLAINANT AND THE DEFENDANT KNEW EACH OTHER, THE TRIAL TESTIMONY DEMONSTRATED THE COMPLAINANT AND DEFENDANT IN FACT KNEW EACH OTHER; THE DISSENT ARGUED THE COURT OF APPEALS REQUIRES THAT THE IDENTIFICATION ISSUE BE RESOLVED BEFORE TRIAL (SECOND DEPT).

The Second Department affirmed defendant’s conviction over a substantive dissent. Arguing against a Wade hearing addressing the suggestiveness of the complainant’s identification of the defendant from single photograph displays, the prosecutor told the judge the complainant and the defendant knew each other and the identification procedures were merely confirmatory. Defendant denied knowing the complainant and requested a Rodriguez hearing. The […]

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THE CONDITIONAL DIRECTIVE THAT FATHER BE AWARDED SOLE CUSTODY IF MOTHER DID NOT RETURN FROM SWEDEN WITH THE CHILD IS NOT ENFORCEABLE; A CHANGE IN CUSTODY MUST BE BASED ON THE BEST INTERESTS OF THE CHILD AND SHOULD NOT BE USED TO PUNISH A PARENT (SECOND DEPT).

The Second Department, reversing Family Court, determined the conditional directive that sole custody of the child be awarded to father if mother did not return from Sweden with the child within 30 days was not enforceable. There was no application for a change of custody before the court. The conditional directive was issued to punish mother […]

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