The Second Department, reducing defendant’s risk assessment from level 2 to level 1, determined a downward department was appropriate because the statutory rape conviction involved consensual sex and defendant had no other sexual offenses in his history: In cases of statutory rape, the Board has long recognized that strict application of the Guidelines may in […]
The Second Department, reversing Supreme Court, determined plaintiff-passenger’s motion for summary judgment in this rear-end collision case should have been granted, despite questions of fact about whether either driver was negligent: The right of an innocent passenger to summary judgment on the issue of whether he or she was at fault in the happening of an […]
The Third Department determined claimant was an employee of a residential newspaper delivery service (Gannett) and was therefore entitled to unemployment insurance benefits: … [W]e find that the indicators of control retained and exercised by Gannett in its contract and dealings with claimant are not materially distinguishable from those previously found to have established an […]
The Second Department determined the prior foreclosure action which was dismissed on the ground the bank did not demonstrate standing did not serve to accelerate the mortgage debt. Therefore the statute of limitations did not start running and the current foreclosure action is timely: … [T]he Supreme Court in the 2009 action determined that the […]
The Second Department, in a full-fledged opinion by Justice Connolly, overruling precedent and disagreeing with the 3rd and 4th Departments, determined (1) a party need not make a motion to set aside the verdict to be entitled to an “against the weight of the evidence” review by the appellate court, and (2) the verdict finding […]
The Third Department determined a warrantless search and seizure of a meth lab was valid and defendant’s motion to suppress was properly denied. Four police officers went to defendant’s property based upon a tip defendant was operating a meth lab there. Before going to the property, the police learned defendant and his girlfriend had purchased […]
The Third Department, reversing defendant’s conviction by guilty plea, determined the waiver of indictment was jurisdictionally defected because the time and place of the offense were not included: … [A] waiver of indictment must be executed in strict compliance with CPL 195.20, which specifically requires, as is relevant here, that it set forth the “date and […]
The Third Department, modifying Family Court, determined Family Court should not have delegated authority to father to control some aspects of visitation, and should not have involved mother’s boyfriend, a non-party, in keeping father informed about mother’s medical or mental issues: The court’s authority to set visitation cannot be delegated to a party … . We […]
The Third Department determined defendant’s motion for summary judgment in this slip and fall case was properly granted. Plaintiff was unable to demonstrate that the source of the water on which she slipped and fell was not simply tracked in rain, which was not actionable. The floor in question was temporary flooring used in a […]
The Third Department. over a dissent, determined petitioner police officer was entitled to accidental disability retirement benefits for injuries caused by stepping in a snow-covered pothole while he responded to a series of vehicle accidents during a snowstorm: As this Court has stated, “[t]o be deemed accidental, an injury must not have been the result […]
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