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DEFENDANT REQUESTED AN ATTORNEY IN NEVADA AND DID NOT WAIVE HIS RIGHT TO COUNSEL BEFORE HE WAS QUESTIONED IN NEW YORK, HIS STATEMENTS SHOULD HAVE BEEN SUPPRESSED (FIRST DEPT).

The First Department, reversing defendant’s conviction and ordering a new trial, determined defendant had requested an attorney in Nevada and, upon being returned to New York, was questioned without waiving his right to counsel in the presence of counsel. Therefore the statements should have been suppressed: Defendant’s motion to suppress his incriminating written and videotaped […]

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PETITIONER’S REQUEST FOR TWO WITNESSES SHOULD NOT HAVE BEEN DENIED, NEW HEARING ORDERED (THIRD DEPT).

The Third Department, ordering new hearing, determined petitioner’s request to call witnesses should not have been denied: … [T]he Hearing Officer improperly denied petitioner’s request to call as witnesses the two inmates who were housed on each side of his cell, as their potential testimony was highly relevant to petitioner’s defense that he was in […]

DAUGHTER’S PETITION TO BE APPOINTED GUARDIAN FOR HER MOTHER, WHO HAS DEMENTIA AND ALZHEIMER’S, SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the petition by one of respondent’s daughters, seeking to be appointed guardian, should not have been denied without a hearing. Respondent is 89 and has been diagnosed with dementia and Alzheimer’s disease and lives with her other daughter, Elizabeth ZZ. Petitioner alleged that Elizabeth had been prohibiting communication […]

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THE EXISTENCE OF A VIDEOTAPE OF THE ALLEGED MISBEHAVIOR-INCIDENT, REQUESTED BY THE PETITIONER, SHOULD HAVE BEEN INVESTIGATED BY THE HEARING OFFICER, NEW HEARING ORDERED (THIRD DEPT).

The Third Department, ordering a new hearing, determined the petitioner’s request for a videotape of the alleged misbehavior-incident should have been looked into by the hearing officer. The hearing officer asserted no videotape existed, but a document indicated a videotape had been preserved: Petitioner requested the videotape from his employee assistant and at the hearing. […]

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IN A TAYLOR LAW ARBITRATION, WHERE THE PARTIES CHOOSE THE ARBITRATORS, THE PARTIALITY OF A CHOSEN ARBITRATOR, WITHOUT MORE, IS NOT A GROUND FOR DISQUALIFICATION (THIRD DEPT).

The Third Department determined Supreme Court properly denied petitioner’s request to disqualify New York City’s choice for an arbitrator in this Taylor Law action brought after the petitioner (Patrolmen’s Benevolent Ass’n) and NYC were unable to negotiate a collective bargaining agreement. Petitioner argued the chosen arbitrator (Linn) should be disqualified as biased: When CPLR 7511 […]

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DEFENSE COUNSEL’S PEREMPTORY CHALLENGE TO A JUROR WAS SLIGHTLY LATE; TO DENY THE REQUEST IN THE ABSENCE OF DISCERNABLE INTERFERENCE OR UNDUE DELAY WAS AN ABUSE OF DISCRETION; NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined the denial of defense counsel’s slightly late peremptory challenge to an unsworn juror was an abuse of discretion: The court named prospective juror number one to be assigned a seat and said, “We now have ten, need two. Looking at Chavez – -,” when defense counsel interrupted, stating […]

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SELLER’S ACTION FOR SPECIFIC PERFORMANCE OF A REAL ESTATE PURCHASE AGREEMENT PROPERLY DISMISSED; THE CONTRACT WAS SUBJECT TO ATTORNEY APPROVAL BUT NO DEADLINE FOR ATTORNEY-APPROVAL WAS SET BY THE AGREEMENT; DEFENDANTS’ COUNSEL INFORMED PLAINTIFF’S COUNSEL THAT DEFENDANTS DID NOT WISH TO GO FORWARD WITH THE PURCHASE EITHER SEVEN OR NINE DAYS AFTER THE CONTRACT WAS EXECUTED, WHICH WAS DEEMED A REASONABLE TIME (SECOND DEPT).

The Second Department determined defendant-purchasers’ motion to dismiss the complaint seeking specific performance of a real estate purchase agreement was property granted. The agreement was subject to attorney approval and defendants’ attorney disapproved the contract either seven or nine days after the agreement was executed. There was no time-limit for attorney approval in the agreement, […]

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THE “PARTICULARITY” PLEADING-REQUIREMENTS FOR A FRAUD CAUSE OF ACTION DO NOT APPLY TO CAUSES OF ACTION ALLEGING A FRAUDULENT CONVEYANCE PURSUANT TO THE DEBTOR-CREDITOR LAW (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that, because a fraudulent conveyance action does not require an intent to defraud, the specificity requirements in the CPLR for pleading a fraud cause of action do not apply. Here plaintiff alleged the defective design and construction of a condominium: Pursuant to Debtor and Creditor Law § 273, […]

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THE DEFENDANT HOSPITAL DID NOT DEMONSTRATE THAT A DOCTOR ORDERED THE RESTRAINT OF PLAINTIFF’S DECEDENT AND THEREFORE DID NOT DEMONSTRATE THAT MEDICAL MALPRACTICE, AS OPPOSED TO NEGLIGENCE, WAS THE APPROPRIATE THEORY; THE ACTION SHOULD NOT HAVE BEEN DISMISSED BASED UPON THE EXPIRATION OF THE 2 1/2 YEAR STATUTE OF LIMITATIONS FOR MEDICAL MALPRACTICE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion to dismiss the complaint on statute of limitations grounds should not have been granted. Plaintiff’s decedent’s injuries were alleged to relate to defendant-hospital’s improper restraint of plaintiff’s decedent (apparently to keep him from getting up from his hospital bed). Defendant argued the 2 1/2 year statute […]

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GOODYEAR DEMONSTRATED IT DID NOT HAVE SUFFICIENT AFFILIATIONS WITH NEW YORK TO CONFER JURISDICTION IN THIS TIRE-MALFUNCTION OUT-OF-STATE ACCIDENT CASE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that Goodyear’s motion to dismiss the products liability complaint for lack of jurisdiction should have been granted. Plaintiff, a New York resident, was injured when a tire manufactured by Goodyear allegedly malfunctioned causing the car to overturn in Virginia. The Second Department held that plaintiff did not rebut Goodyear’s […]

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