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THE TRIAL JUDGE DID NOT MAKE AN ADEQUATE INQUIRY ABOUT THE REASONS FOR A SITTING JUROR’S ABSENCE BEFORE SUBSTITUTING AN ALTERNATE JUROR; NEW TRIAL ORDERED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Garcia, reversing the Appellate Division, determined the trial judge did not make an adequate inquiry about a sitting juror’s absence before substituting an alternate juror for the sitting juror (Juror Number 9). The defendant had moved for a mistrial on that ground: … [T]he trial court […]

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THE MAJORITY HELD THE ISSUES WHETHER MOTHER HAD MADE ALLEGATIONS OF DOMESTIC ABUSE IN A SWORN PLEADING OR WHETHER MOTHER HAD PROVEN DOMESTIC ABUSE ALLEGATIONS AGAINST FATHER WERE NOT PRESERVED FOR APPEAL; THE DISSENT ARGUED THE ISSUES WERE PRESERVED AND WOULD REMIT FOR A BEST INTERESTS OF THE CHILD ANALYSIS (CT APP).

The Court of Appeals, over a detailed and comprehensive dissent, affirmed the award of custody to father, finding that the issues raised on appeal by mother were not preserved. Defendant mother argued she had made allegations of domestic abuse in a sworn pleading (petition) and, therefore, pursuant to Domestic Relations Law 240(1)(a), the court was […]

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PLAINTIFF’S DISABILITY DISCRIMINATION CAUSES OF ACTION UNDER THE STATE AND CITY HUMAN RIGHTS LAW PROPERLY SURVIVED SUMMARY JUDGMENT; THE DIFFERENT REQUIREMENTS OF THE STATE VERSUS CITY HUMAN RIGHTS LAW IN THIS CONTEXT EXPLAINED IN SOME DEPTH (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Acosta, determined plaintiff’s disability discrimination claims under the NYS and NYC Human Rights Law (HRL) properly survived summary judgment. Issues of fact were raised about whether defendant sufficiently engaged in dialogue about accommodating plaintiff’s needs prior to terminating her employment. The decision explains the different proof requirement […]

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BANK WHICH ISSUED AN “OFFICIAL CHECK” DRAWN ON A DIFFERENT BANK, AFTER THE CUSTOMER’S FUNDS WERE WIRED TO THAT OTHER BANK (PURSUANT TO AN AGREED ARRANGEMENT), WAS NOT LIABLE UNDER THE UNIFORM COMMERCIAL CODE OR UNDER A MONEY HAD AND RECEIVED THEORY FOR THE SUBSEQUENT MISAPPROPRIATION OF THE CHECK (FIRST DEPT).

The First Department, reversing Supreme Court, in a full-fledged opinion by Justice Friedman, determined the defendant Signature Bank was not liable under the Uniform Commercial Code or under a money had and received theory for the misappropriation of an “official check” for $292,000: According to the affidavit of Patrick Manzi, Signature’s senior vice president and […]

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FAMILY COURT SHOULD HAVE MADE FINDINGS WHICH WOULD ALLOW THE CHILD TO PETITION FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) (FIRST DEPT).

The First Department, reversing Family Court, determined the court should have made findings which would allow the child to petition for Special Immigrant Juvenile Status (SIJS): The evidence shows that the subject child was unmarried and under the age of 21 at the time of the special findings hearing and order (see generally 8 USC § […]

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DEFENDANT’S MOTION TO COMPEL THE PRODUCTION OF TAX RETURNS AFTER THE PARTIES’ FAILURE TO RESPOND TO THE DEMAND FOR PRODUCTION SHOULD HAVE BEEN DENIED; THE FAILURE TO RESPOND TO A PALPABLY IMPROPER DEMAND FOR PRODUCTION, I.E. A DEMAND FOR TAX RETURNS, DOES NOT WAIVE THE ABILITY TO OBJECT TO THE DEMAND ON APPEAL; DEFENDANT MAY RENEW THE MOTION TO COMPEL PRODUCTION OF THE TAX RETURNS IF THE REQUIRED SHOWINGS ARE MADE (FIRST DEPT).

The First Department noted that the failure to respond to defendant-Mazal’s demands for production waived any objections to the demands. Mazal’s motion to compel discovery therefore was properly granted. However objections to demands which are palpably improper are not waived by a failure to respond and Mazal’s demand for tax returns may be in the palpably-improper category. […]

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SELF-EXECUTING CONDITIONAL DISCOVERY ORDER BECAME ABSOLUTE UPON NON-COMPLIANCE; A MOTION TO VACATE, NOT AN APPEAL, IS THE PROPER PROCEDURE TO CONTEST THE ORDER ON THE GROUND OF EXCUSABLE DEFAULT; DEFENDANTS TOOK NO ACTION TO AVOID THE DEFAULT (FIRST DEPT).

The First Department noted that defendants’ failure to comply with a self-executing, conditional order striking the answer became absolute. The proper way to contest such an order is to move to vacate, not appeal: When defendants failed to comply with the self-executing, conditional order striking their answer if they did not produce a witness for […]

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THE ORDER WAS NOT ENTERED ON CONSENT AND THEREFORE WAS APPEALABLE; GRANDPARENTS’ PETITIONS FOR VISITATION SHOULD NOT HAVE BEEN GRANTED ABSENT A FULL TRIAL (FIRST DEPT).

The First Department, after noting the order was not entered on consent and was therefore appealable, determined the grandparents should not have been awarded visitation absent a full trial: In the absence of consent, Family Court should not have awarded the paternal grandparents visitation without conducting a full trial. The decision was based only on […]

DEFENDANT WAS ADJUDICATED A YOUTHFUL OFFENDER AND SENTENCED TO 60 DAYS IN JAIL AND FIVE YEARS PROBATION FOR STEALING A BREAKFAST SANDWICH FROM A RESTAURANT; EXTENSIVE DISSENT ARGUED THE SENTENCE WAS HARSH AND EXCESSIVE (FIRST DEPT).

The First Department upheld the defendant’s sentence as a youthful offender to 60 days in jail and five years probation. Defendant stole a breakfast sandwich from a restaurant after throwing a banana at an employee, jumping over the counter, saying he had gun, and leaving the restaurant with the sandwich. This decision is significant because of the extensive […]

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JURY SHOULD HAVE BEEN CHARGED ON THE RES IPSA LOQUITUR DOCTRINE AND INSTRUCTED THAT THE VIOLATION OF THE NYC ADMINISTRATIVE CODE IS SOME EVIDENCE OF NEGLIGENCE IN THIS FALLING OBJECT CASE, NEW TRIAL ORDERED (FIRST DEPT).

The First Department, reversing Supreme Court and ordering a new trial, determined the jury should have been instructed on the res ipsa loquitur doctrine and the violation of the NYC Administrative Code was some evidence of negligence. Plaintiff was allegedly injured when a towel dispenser/trash receptacle (TD/TR) fell out of the wall: … [W]e find […]

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