The Fourth Department, reversing Family Court, determined Family Court should have held a custody hearing without father’s participation: During an appearance at which Family Court specifically stated that it was not “making any findings” and that it would make findings only after a future hearing, the father apparently grew frustrated with the proceedings and walked out […]
The Fourth Department determined custody of the children was properly granted to father, against the children’s wishes. The attorney for the child (AFC) informed the court of the children’s wishes but supported custody by the father. The mother unsuccessfully argued a Lincoln hearing should have been held. The dissent agreed that a Lincoln hearing was necessary: The mother further […]
The Fourth Department determined there should not be more than one SORA risk assessment for convictions stemming from the same course of conduct and based upon the same Risk Assessment Instrument (RAI). The first risk assessment was in Allegany County and designated defendant a level two risk. The second risk assessment was in Cattaraugus County […]
The Fourth Department determined defendant’s sentence was unduly harsh based upon his criminal history and the plea deal defendant was offered before trial: … [T]he 10-year determinate sentence is unduly harsh and severe considering that defendant has no violent crimes on his record and was offered the opportunity to plead guilty to the charges in the […]
The Fourth Department, reversing (modifying) Supreme Court, determined petitioner’s violation of the public trust doctrine causes of action should not have been dismissed. The action relates to the construction of a Whole Foods store in the vicinity of a recreational trail and a public use easement: … [T]he court erred by granting a declaration in […]
The Fourth Department, reversing the Court of Claims, determined claimant’s application to file a late claim in this Labor Law 240 (1) action should have been granted. The criteria for allowing a late claim under the Court of Claims Act were described in some detail: Upon our consideration of the six factors outlined in Court […]
The Fourth Department, reversing Supreme Court, over a two-justice dissent, reinstated the medical malpractice action against several defendants. The dissent argued that evidence submitted in opposition to defendants’ motion for summary judgment presented a new theory and should have been rejected on that ground. The dissent argued that the new theory was raised for the […]
The Fourth Department, reversing Supreme Court, determined plaintiff’s action against the owner of a defendant strip club for injuries incurred when plaintiff was arm-wrestling with defendant’s employee should have been dismissed. Defendant’s employee was not acting within the scope of his employment and defendant therefore could not be liable under a respondeat superior theory: … [W]e […]
The Fourth Department, over a dissent, determined that, although a decision is not an appealable paper, the decision in this divorce action was close enough to an order to support an appeal. The dissent disagreed: As a preliminary matter, although not raised by the parties and although “[n]o appeal lies from a mere decision” (… […]
The Fourth Department, in a full-fledged opinion by Justice Peradotto, determined that the statute prohibiting possession of an unlicensed firearm in the home does not violate the Second Amendment: … [D]efendant contends that New York may not constitutionally impose any criminal sanction whatsoever on the unlicensed possession of a handgun in the home. * * […]
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