The Fourth Department, reversing Supreme Court, over a two-justice dissent, determined the motion to renew should not have been granted. The dissenters argued the motion could have been considered a motion to reargue in the exercise of discretion: It is well settled that “[a] motion for leave to renew must be based upon new facts […]
The Fourth Department, reversing Supreme Court, determined plaintiff, the assignee of no-fault benefits, did not state valid causes of action against the insurer for breach of contract, negligent hiring and supervision, and prima facie tort. The claims were paid by the defendant and plaintiff alleged flaws and delays in the processing of the claims: The […]
The Fourth Department determined there was insufficient evidence to justify a level three risk assessment. The assessment was reduced to level two. The court noted that County Court should have applied the preponderant evidence standard, not a clear and convincing standard: … [T]he People did not establish by clear and convincing evidence that defendant had […]
The Fourth Department, over a two-justice partial dissent, reduced defendant’s sentence in this “criminal possession of a controlled substance third degree” case from 12 to seven years. The period of post-release supervision was reduced from three to one and a half years. Defendant was found in possession of over 35 ounces of cocaine: … [W]e […]
The Second Department, reversing Supreme Court, determined the mortgage was not accelerated until the foreclosure action was commenced in October, 2016. Therefore the action was not time-barred, except for the mortgages payments due but not paid more than six years prior to October 2016 (missed payments prior to October 2010): … [C]ontrary to the defendant’s […]
The Second Department imposed sanctions on a party and its attorneys for failure to inform the appellate court of the settlement of matters on appeal: … Gross Polowy, LLC, trial counsel for the respondent, is directed to pay a sanction in the [*2]sum of $1,000 to the Lawyers’ Fund for Client Protection of the State of New York […]
The Second Department determined defendant should not have been classified as a predicate sex offender based upon a Michigan conviction of breaking and entering an occupied dwelling with the intent to commit criminal sexual conduct in the second degree: Supreme Court should not have, in effect, designated the defendant a predicate sex offender based upon his […]
The Second Department, in a full-fledged opinion by Justice Dillon, reversing Supreme Court and ruling on some issues of first impression, determined plaintiffs’ medical malpractice action should not have been dismissed. The decision is too detailed and comprehensive to be fairly summarized here. The medical malpractice action was started in 2013 in decedent’s name three months […]
The Second Department determined the trial evidence supported the ruling that two facially ambiguous releases executed by the (a gasoline supplier) and the former owner of the gas station precluded an action by plaintiff, the current owner of the gas station, to recover from defendant plaintiff’s expenditures for the cleanup of leaked gasoline.: Where a […]
The Second Department, reversing (modifying) Supreme Court, determined the zoning board did not consider all the statutory factors before rejecting Ressa-Cibants’ request for variances for new construction: In determining whether to grant an area variance, a village zoning board must weigh the benefit to the applicant against the detriment to the health, safety, and welfare […]
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