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THE RAISED SIDEWALK FLAG WAS NOT A “TRIVIAL DEFECT” AS A MATTER OF LAW, YET PLAINTIFF’S ATTORNEYS DID NOT SUBMIT WRITTEN OPPOSITION TO THE SUMMARY JUDGMENT MOTION IN THE SLIP AND FALL CASE WHICH WAS DISMISSED; PLAINTIFF THEREFORE RAISED A QUESTION OF FACT IN THIS LEGAL MALPRACTICE ACTION (FIRST DEPT).

The First Department, reversing Supreme Court in this legal malpractice action, determined there was a question of fact in the underlying slip and fall case which plaintiff’s attorneys could have, but failed to, raise. The raised sidewalk flag which caused plaintiff’s fall was not trivial as a matter of law, as the judge in the […]

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PLAINTIFF’S DECEDENT’S LAWSUIT AGAINST DEFENDANT NURSING HOME, WHICH APPARENTLY ALLEGED, AMONG OTHER THINGS, THAT PLAINTIFF’S DECEDENT WAS NEGLIGENTLY EXPOSED TO COVID-19, WAS NOT PRECLUDED BY THE “EMERGENCY OR DISASTER TREATMENT PROTECTION ACT” OR THE “FEDERAL PUBLIC READINESS AND EMERGENCY ACT” (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the wrongful death complaint, which apparently alleged, among other things, decedent was negligently exposed to COVID-19 in defendant nursing home, should not have been dismissed. The Fourth Department held that the defendants submissions did not demonstrate the COVID-19-releated immunity provided by the Emergency or Disaster Treatment Protection Act […]

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AT THE TIME OF THE COLLISION, THE SHERIFF’S DEPUTY WAS ENGAGED IN AN EMERGENCY OPERATION AND DID NOT ACT WITH RECKLESS DISREGARD FOR THE SAFETY OF OTHERS; TWO-JUSTICE DISSENT (FOURTH DEPT).

The Fourth Department, affirming Supreme Court, over a two-justice dissent, determined the police vehicle (driven by Deputy Fong) which collided with plaintiff’s vehicle was engaged in an emergency operation and was not being operated in reckless disregard for the safety of others. The dissenters argued there was a question of fact on the “reckless disregard” […]

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MOTHER’S ALLEGATIONS OF CHANGES IN CIRCUMSTANCES WERE SUFFICIENT TO WARRANT A HEARING ON HER CUSTODY PETITION; MATTER REMITTED (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined mother’s custody petition should not have been summarily dismissed without a hearing: “A hearing is not automatically required whenever a parent seeks modification of a custody [or visitation] order” … . Rather, “[t]he petitioner must make a sufficient evidentiary showing of a change in circumstances to require a […]

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THE JUDGE SUMMARILY DENIED DEFENDANT’S REQUEST TO REPRESENT HIMSELF WITHOUT CONDUCTING THE MANDATORY “SEARCHING INQUIRY;” NEW TRIAL ORDERED (FOURTH DEPT).

The Fourth Department, ordering a new trial, determined defendant’s request to proceed pro se was summarily denied without the required “searching inquiry:” It is well established that a defendant in a criminal case may invoke the right to proceed pro se provided that “(1) the request is unequivocal and timely asserted, (2) there has been […]

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HERE THE EVIDENCE WAS PURELY CIRCUMSTANTIAL; DEFENDANT’S REQUEST FOR A CIRCUMSTANTIAL-EVIDENCE JURY INSTRUCTION SHOULD HAVE BEEN GRANTED; NEW TRIAL ORDERED ON THE MURDER AND ATTEMPTED MURDER CHARGES (FOURTH DEPT). ​

The Fourth Department, ordering a new trial on the murder and attempted murder charges, determined the judge should have given the circumstantial-evidence jury instruction: “[A] trial court must grant a defendant’s request for a circumstantial evidence charge when the proof of the defendant’s guilt rests solely on circumstantial evidence . . . By contrast, where […]

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THE “ALLEGEDLY INCAPACITATED PERSON” (AIP) WAS NOT PRESENT FOR THE MENTAL HYGIENE LAW GUARDIANSHIP HEARING; THE AIP’S ATTORNEY CANNOT CONSENT TO THE APPOINTMENT OF A GUARDIAN IF THE AIP IS NOT PRESENT; MATTER REMITTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the absence of the allegedly incapacitated person (AIP) from the proceeding to appoint a guardian pursuant to the Mental Hygiene Law required remittal: “Guardianship proceedings, as a drastic intervention in a person’s liberty, must adhere to proper procedural standards” … . Pursuant to Mental Hygiene Law § 81.11, […]

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FAILURE TO COMPLY WITH THE EMPLOYER’S DIRECTIVE TO TAKE THE COVID-19 VACCINE JUSTIFIED THE TERMINATION OF PETITIONER’S EMPLOYMENT; THE ARBITRATOR’S RULING TO THAT EFFECT DID NOT VIOLATE PUBLIC POLICY AND WAS NOT IRRATIONAL (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, affirmed the arbitrator’s determination petitioner was properly terminated because she refused the COVID-19 vaccine: … [T]he court “erred in vacating the award on the ground that it was against public policy because petitioners failed to meet their heavy burden to establish that the award in this employer-employee dispute violated […]

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THE FAILURE TO COMPLY WITH THE CONDITIONS PRECEDENT IN CPLR 3216 PRECLUDED DISMSSAL OF THE COMPLAINT (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the failure to comply with the requirements of CPLR 3216 precluded the dismissal of the complaint: … [A]bsent strict compliance with the conditions precedent to dismissal set forth in CPLR 3216 (b) (3), “[n]o dismissal shall be directed” … . Indeed, “[t]he conditions precedent to bringing a motion […]

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ALTHOUGH ALL JUSTICES AGREED THE CERTIFICATE OF COMPLIANCE WAS NOT ILLUSORY, THE CONCURRENCE ARGUED THE PEOPLE SHOULD HAVE ASCERTAINED THE NAMES OF WITNESSES CAPTURED ON A VIDEO (FOURTH DEPT).

The Fourth Department determined the People’s certificate of compliance (COC) was not illusory and, therefore, the speedy trial statute was not violated. The concurrence agreed the COC was not illusory, but argued the People should have ascertained and turned over the names of witnesses which were depicted in a video: … [W]ith respect to defendant’s […]

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