The Fourth Department determined defendant did not rebut the presumption of valid service of process: … [P]laintiff submitted, in addition to evidence establishing the default of defendant and “proof of the facts constituting the claim” (CPLR 3215 [f] … ), the affidavit of a process server, who averred that he served defendant by delivering a […]
The Fourth Department determined father was not in default because his attorney appeared. Therefore the custody order was appealable: Petitioner father commenced this proceeding seeking to modify a prior order of custody that, inter alia, awarded sole legal and physical custody of the subject child to respondent mother. The father now appeals from an order […]
The Fourth Department, vacating defendant’s guilty plea, determined defendant was deprived of his right counsel because defense counsel had become employed by the district attorney’s office at the time of the plea: It is well established that a criminal defendant’s right to counsel is violated when a defense attorney who actively participated in the preliminary […]
The Fourth Department determined the defendant did not preserve for appeal his objection to the trial judge’s prohibiting defendant from communicating with his lawyer during overnight recesses when defendant was testifying. The legitimacy of the objection was not addressed: Defendant … contends in his main brief that the court committed reversible error by depriving him of […]
The Fourth Department, in a full-fledged opinion by Justice Centra, over a two-justice concurrence and a dissent, determined petitioner, the former same-sex partner of mother, did not have standing to seek custody and visitation of the child, despite mother’s support of the petition. The petitioner moved out of mother;s residence in 2010. Mother thereafter conceived […]
The Fourth Department, reversing County Court, determined the judge should not have, sua sponte, assessed points on a theory not raised by the Board of Examiners of Sex Offenders or the People: … [D]efendant contends, and the People correctly concede, that County Court violated his right to due process by sua sponte assessing points on […]
The First Department, vacating defendant’s guilty plea, determined defendant should have been informed his sentence would include a period of post release supervision (PRS). Because defendant was not put on notice, there was not need to preserve the issue for appeal: At the plea proceeding, the court advised defendant that under the plea agreement, he […]
The First Department, reversing Supreme Court, determined the City defendants should have been sanctioned for spoliation of evidence. The action stemmed from a traffic accident involving a police vehicle and the city defendants were put on notice they would assert an emergency defense by the notice of claim. But the pre-accident police communications were not preserved: […]
The Second Department, reversing Supreme Court, determined a hearing should have been held about the validity of the service of the summons and complaint; i.e., whether service on the doorman of the defendant’s (Freeman’s) apartment building was valid service: The plaintiff asserted that service of process was properly made pursuant to CPLR 308(2), relying on an […]
The Second Department, reversing Supreme Court, determined conflicting expert opinions in this medical malpractice action created a question of fact: … [T]he plaintiff’s submissions were sufficient to raise a triable issue of fact. The expert affirmations of two board-certified urologists submitted by the plaintiff contradicted the conclusion of the NYCHH defendants’ experts that the RUMC […]
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