The First Departing, ordering a new trial, determined defendant’s for cause challenge to a juror should have been granted: The challenged panelist stated that he could not be “fully fair” if defendant did not testify and “defend himself,” and that it might be difficult for him to acquit a defendant who did not testify, because […]
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 […]
The Second Department noted that the restitution amount payable to the Crime Victims Board exceeded the statutory cap: … [T]he amount of restitution payable to the Crime Victims Board for the family of Sherman Richardson improperly exceeds $15,000 and violates the statutory cap in Penal Law § 60.27(5)(a). Penal Law § 60.27(5)(a) provides that, except with the […]
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 […]
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 […]
The Second Department, reversing Family Court, determined the record did not support the return of the child to the parent’s custody after temporary removal. The Second Department found that the parent’s difficulty controlling the child’s brother, who requires constant supervision, put the child at risk: “An application pursuant to Family Court Act § 1028(a) for […]
The Second Department, reversing (modifying) Supreme Court, determined plaintiff’s lack-of-informed-consent cause of action in this medical malpractice case should have been dismissed. Plaintiff had alleged a new theory in response to defendant’s motion for summary judgment which should not have been considered because the theory was not discernable from the pleadings: … [T]he Supreme Court should […]
The Second Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment in lieu of complaint (CPLR 3213) based upon a promissory note should not have been granted. The note was not demonstrated to be an instrument for the payment of money only: Pursuant to CPLR 3213, a plaintiff demonstrates its prima facie entitlement to […]
The Second Department, reversing Supreme Court, determined there were questions of fact about whether the continuous representation doctrine tolled the statute of limitations in this architectural malpractice/breach of contract action. Defendant’s decedent was hired by plaintiff to construct a four-story condominium. Although the work was completed in 2008 there were problems getting approval by the city […]
The Second Department determined plaintiff-mother’s action for damages for emotional harm stemming from the birth of her child was properly dismissed. A mother cannot recover for emotional distress for injury in utero if the child is born alive: A mother cannot recover damages for emotional harm where the alleged malpractice causes in utero injury to […]
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