The Second Department, reversing Family Court, determined there was sufficient evidence of a change of circumstances to award mother sole custody of the children: … [T]he Family Court’s determination, in effect, that there had been no change in circumstances requiring a transfer of legal custody to the mother and a modification of the father’s parental […]
The Second Department, reversing Supreme Court, determined there were questions of fact whether the exclusions in the homeowner’s policy applied to damage caused during Superstorm Sandy. The expert opinion evidence did not demonstrate flooding, as opposed to wind, was the predominant cause of the damage: The Homeowners Policy contains three exclusions which Allstate has raised […]
The Court of Appeals, ordering a new trial, in a brief memorandum with no description of the facts, determined evidence of prior accidents involving the gap between the subway train and the platform should not have been admitted because there was no showing the conditions were the same. However the evidence of the non-mandatory gap […]
The Court of Appeals, reversing defendant’s conviction, over a concurrence, determined the testimony which formed the basis for the admission in evidence of DNA profiles was hearsay which violated the Confrontation Clause: In People v John, we held that, when confronted with testimonial DNA evidence at trial, a defendant is entitled to cross-examine “an analyst who […]
The Court of Appeals, in a full-fledged opinion by Judge Stein, determined General Business Law sections 349 and 350 applied to a health insurance plan offered to New York City employees. Plaintiff, a retired NYC police officer brought the action in federal court alleging the insurer (GHI) engaged in “deceptive practices” and “false advertising.” The […]
The Fourth Department, reducing defendant’s risk level, determined that an entry in the case summary alone is not sufficient to justify an assessment of points: We agree with defendant that the People failed to prove by the requisite clear and convincing evidence that he had committed a continuing course of sexual misconduct, i.e., risk factor 4 […]
The Fourth Department determined Supreme Court properly ruled that Georgia law controlled the action which alleged Bank of America’s employees or agents notarized documents with false signatures. The torts were alleged to have occurred in Georgia. Plaintiff was a domiciliary of New York and Bank of America was a domiciliary of North Carolina: If the conflicting […]
The Fourth Department, over a two-justice dissent, determined defendant’s pro se motion to vacate his conviction by guilty plea, on ineffective assistance of counsel grounds, was properly denied without a hearing. The dissenters argued defendant raised the issue sufficiently to warrant a hearing: Defendant contends that defense counsel was ineffective because he failed to advise […]
The Fourth Department determined defendant invoked his right to counsel when he was not in custody and therefore defendant could validly withdraw his request for counsel without the presence of counsel: The Court of Appeals has stated that a defendant who asserts his or her right to counsel while out of custody may later withdraw […]
The Fourth Department determined jail is not a “public accommodation” within the meaning of the Human Rights Law. Therefore petitioner’s administrative complaint alleging unlawful discrimination in the jail was properly dismissed by the NYS Division of Human Rights (SDHR) for lack of jurisdiction: SDHR has jurisdiction to, inter alia, investigate and adjudicate complaints of unlawful […]
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