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ALTHOUGH THE ORDER ADDRESSING A MOTION TO SET ASIDE THE VERDICT WAS ISSUED AFTER JUDGMENT AND THEREFORE CANNOT BE SUBSUMED IN THE JUDGMENT, THE ORDER IS APPEALABLE; PRECEDENT TO THE CONTRARY OVERRULED (FOURTH DEPT).

The Fourth Department, in a full-fledged opinion by Justice Troutman, overruling precedent, determined that an order issued after judgment, here an order on a motion to set aside the verdict, can be appealed: … [W]e must consider whether a party may appeal directly from an order denying a CPLR 4404 motion when that order was […]

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THE MEDICAL RECORDS SUBMITTED FOR THE FIRST TIME IN REPLY CAN BE CONSIDERED BECAUSE RESPONDENTS ADDRESSED THE RELEVANT ISSUES AT ORAL ARGUMENT; THE MEDICAL RECORDS DEMONSTRATED RESPONDENTS HAD TIMELY NOTICE OF THE NATURE OF THE CLAIM; ALTHOUGH THE EXCUSE FOR DELAY WAS NOT ADEQUATE, THE DEFECT DID NOT REQUIRE DENIAL OF THE APPLICATION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM; THE APPLICATION SHOULD NOT HAVE BEEN DENIED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, over a two-justice dissent, determined claimant’s application for leave to file a late notice of claim in this medical malpractice action should have been granted. The court noted that the medical records submitted for the first time in a reply were properly considered because the respondents addressed the relevant […]

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COCAINE IS NOT DANGEROUS CONTRABAND WITHIN THE MEANING OF PROMOTING PRISON CONTRABAND IN THE FIRST DEGREE; CONVICTION REDUCED TO PROMOTING PRISON CONTRABAND IN THE SECOND DEGREE (PROHIBITING ‘CONTRABAND,’ AS OPPOSED TO ‘DANGEROUS CONTRABAND’) (FOURTH DEPT).

The Fourth Department, reversing (modifying) County Court, in a full-fledged opinion by Justice Troutman, over a two-justice concurrence and a dissent, determined cocaine does not meet the statutory definition of dangerous contraband within the meaning of the offense of promoting prison contraband in the first degree. The defendant’s conviction, based upon the possession of three […]

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NO APPEAL LIES FROM A NONFINAL ORDER, HERE ORDERS WHICH DID NOT RESOLVE THE AWARD OF ATTORNEY’S FEES; IN A SUCCESSFUL SHAREHOLDERS’ DERIVATIVE ACTION ATTORNEY’S FEES ARE PAID BY THE CORPORATION (FOURTH DEPT).

The Fourth Department determined no appeal lies from a nonfinal order and, in a successful shareholders’ derivative action, the corporation is liable for attorney’s fees. The facts of the case are too complex to fairly summarize here. Defendant limited liability company was formed to develop a residential subdivision. The action alleged breach of contract and breach of […]

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QUESTIONS OF FACT PRECLUDED SUMMARY JUDGMENT IN THIS SEX AND DISABILITY DISCRIMINATION ACTION BY A TENURED ASSOCIATE PROFESSOR ON THE EQUAL PAY ACT CAUSE OF ACTION AND CERTAIN NYS HUMAN RIGHTS LAW CAUSES OF ACTION (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined the Equal Pay Act (EPA) cause of action and certain NYS Human Rights Law (NYSHRL) causes of action should not have been dismissed in this sex and disability discrimination action brought by a tenured associate professor: With respect to the cause of action alleging violations of the […]

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AFTER REVERSAL BY THE COURT OF APPEALS, DEFENDANT’S SUPPRESSION MOTION WAS GRANTED AND HIS GUILTY PLEA WAS VACATED; EVEN THOUGH DEFENDANT’S SUPPRESSION MOTION DID NOT RELATE TO THE OFFENSE TO WHICH DEFENDANT PLED GUILTY, THE APPELLATE DIVISION SHOULD HAVE REACHED THE MERITS OF THE MOTION BECAUSE OF ITS POTENTIAL EFFECT ON THE DECISION TO PLEAD GUILTY TO ANOTHER OFFENSE IN FULL SATISFACTION OF ALL THE CHARGES (FOURTH DEPT).

The Fourth Department, after a reversal by the Court of Appeals, determined defendant’s motion to suppress evidence seized after a street stop should have been granted and vacated defendant’s guilty plea. Defendant was charged with two burglaries on different days. Defendant pled guilty to one of the burglaries in satisfaction of both. Defendant appealed the denial […]

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FEDERAL CUSTOMS AND BORDER PATROL MARINE INTERDICTION AGENT IS NOT A PEACE OFFICER UNDER NEW YORK LAW; THEREFORE THE AGENT MADE A VALID CITIZEN’S ARREST OF AN ERRATIC DRIVER HE OBSERVED WHILE ON THE HIGHWAY; MOTION TO SUPPRESS THE WEAPON FOUND IN DEFENDANT’S CAR SHOULD NOT HAVE BEEN GRANTED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Feinman, reversing the Appellate Division, over a dissent, determined the federal marine interdiction agent with US Customs and Border Protection (CBP) was not a peace officer under New York law and, therefore, could effect a citizen’s arrest. The federal agent observed defendant driving erratically and […]

COURT’S ERRORS IN DEALING WITH NOTES FROM THE JURY, INCLUDING SUBSTITUTING THE WORD ‘INITIALLY’ FOR ‘INTENTIONALLY,’ REQUIRED REVERSAL (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined the court’s handling of jury notes constituted reversible error: … [I]n a note marked as court exhibit 8, the jury posited a question about the elements of resisting arrest. When reading that note into the record, the Supreme Court substituted the word “initially” in place of the word […]

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ALTHOUGH REFORMATION OF THE CONTRACT MAY HAVE CONSTITUTED REVERSIBLE ERROR HAD A COURT DONE IT, THE REFORMATION WAS APPROPRIATE IN THE CONTEXT OF AN ARBITRATION OF THIS COMPLEX COMMERCIAL DISPUTE; THE ARBITRATION AWARD WAS PROPERLY CONFIRMED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Oing, determined that, under the highly deferential standard of court-review of arbitration awards, the award here was properly confirmed, despite an error which might have required reversal if committed by a court. The underlying facts (the provisions of the contract) are too complex to fairly summarize […]

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EVEN THOUGH THE US SUPREME COURT CASE REQUIRING WARRANTS FOR CELL SITE LOCATION DATA WAS NOT DECIDED AT THE TIME OF TRIAL, PRESERVATION OF THAT ISSUE FOR APPEAL IS STILL NECESSARY; A DEFENDANT MAY BE INDICTED FOR BOTH DEPRAVED INDIFFERENCE AND INTENTIONAL MURDER; CONSECUTIVE SENTENCES FOR THE SHOOTINGS AND POSSESSION OF A WEAPON WERE APPROPRIATE (FIRST DEPT). ​

The First Department, affirming defendant’s murder, assault and weapon-possession convictions, and affirming the denial of defendant’s motion to vacate the convictions, determined: (1) the issue re: the warrantless procurement of cell site location data was not preserved, and preservation was necessary despite the fact that the US Supreme Court case requiring warrants was not decided […]

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