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DEFENDANTS BREACHED THE CONTRACT BY TERMINATING IT WITHOUT GIVING PLAINTIFF THE TIME TO CURE DEFICIENCIES CALLED FOR IN THE CONTRACT (FOURTH DEPT).

The Fourth Department determined defendants should not have terminated plaintiff’s contract to install a heating system without giving plaintiff the time to cure deficiencies called for by the contract: … [W]e conclude that plaintiff met its initial burden of establishing that defendants failed to follow the termination for cause procedures in the contract when they, […]

PLAINTIFF ENTITLED TO JURISDICTIONAL DISCOVERY WITH RESPECT TO DEFENDANT HOSPITAL IN THIS MEDICAL MALPRACTICE ACTION; HOSPITAL DID NOT CONSENT TO JURISDICTION BY REGISTERING AS A FOREIGN CORPORATION; DOCTORS DID NOT CONSENT TO JURISDICTION BY BECOMING LICENSED IN NEW YORK (FOURTH DEPT).

The Fourth Department determined the plaintiff was entitled to jurisdictional discovery with regard to a hospital defendant in this medical malpractice action. The court noted that the hospital did not consent to the general jurisdiction of New York courts by registering as a foreign corporation with the Department of State and the defendant doctors did […]

CELLINO’S PETITION FOR DISSOLUTION OF CELLINO & BARNES PC PROPERLY SURVIVED A MOTION FOR SUMMARY DISMISSAL (FOURTH DEPT).

The Fourth Department determined petitioner’s (Cellino’s) petition for dissolution of the professional corporation (Cellino & Barnes, PC) properly survived a motion for summary dismissal: … [W]e reject respondents’ [Barnes’] contention that the court erred in denying their motion insofar as it sought summary dismissal of the amended petition on the ground that dissolution would not […]

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IN DENYING A SUPPRESSION MOTION THE JUDGE CAN CONSIDER EVIDENCE SUBMITTED BY THE PEOPLE, EVEN IF THAT EVIDENCE WAS NOT EXPRESSLY RELIED UPON BY THE PEOPLE; OBSERVATION OF WHAT APPEARED TO BE A DRUG TRANSACTION PROVIDED PROBABLE CAUSE; THE AUTOMOBILE EXCEPTION TO THE WARRANT REQUIREMENT APPLIED; THE INVENTORY SEARCH WAS VALID (FOURTH DEPT).

The Fourth Department determined defendant’s motion to suppress tangible evidence was properly denied, finding (1) the suppression court could properly consider all the evidence presented by the People, even if the evidence was not expressly relied upon by the People; (2) although the vehicle occupants were seized at the time the police approached, the officers’ prior […]

DEFENDANT’S ABSENCE FROM SIDEBAR CONFERENCES DURING JURY SELECTION DID NOT REQUIRE REVERSAL (FOURTH DEPT). ​

The Fourth Department, over a dissent, determined defendant’s absence from sidebar conferences did not require reversal: Defendant contends that the court violated the rule in People v Antommarchi (80 NY2d 247, 250 [1992] …) when it conducted several sidebar conferences in his absence and that reversal is required with respect to two of those conferences. We disagree with […]

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UNDER THE TERMS OF THE LEASE AND VILLAGE REGULATIONS, THE HERKIMER COUNTY INDUSTRIAL DEVELOPMENT AGENCY, AS THE OWNER OF PROPERTY ABANDONED BY THE TENANT, IS RESPONSIBLE FOR THE UNPAID WATER CHARGES INCURRED BY THE TENANT (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, over a two-justice dissent, determined Herkimer County Industrial Development Agency (HCIDA) as the owner of property which had been abandoned by the tenant was responsible to the Village for water charges incurred by the tenant: … [W]here, as here, an owner “consents to the tenant’s using water in [a] […]

PLAINTIFF WAS KILLED WHEN A HEAVY PIECE OF EQUIPMENT HE WAS WELDING FELL; ALTHOUGH THE EQUIPMENT WAS FABRICATED FOR A POWER PLANT BEING CONSTRUCTED IN NEW HAMPSHIRE, PLAINTIFF WAS NOT ENGAGED IN CONSTRUCTION WORK WITHIN THE MEANING OF LABOR LAW 240 (1) (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court, over a two-justice dissent, determined plaintiff was not involved in an activity covered by Labor Law 240 (1) when he was pinned and killed by a piece of equipment he was welding. Plaintiff was engaged in fabricating a rotor compartment which was to be installed in a power plaint […]

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COUNTY COURT SHOULD NOT HAVE ACCEPTED GRAND JURY REPORTS RE: THE ALLEGED MISCONDUCT, NONFEASANCE OR NEGLECT IN OFFICE OF THREE PUBLIC OFFICIALS; THE PROSECUTOR DID NOT INSTRUCT THE GRAND JURY ON THE SUBSTANTIVE ASPECTS OF THE PUBLIC OFFICIALS’ DUTIES (FOURTH DEPT).

The Fourth Department, reversing County Court, determined that the grand jury reports concerning the alleged misconduct, nonfeasance or neglect in office of three public officials should not have been accepted by County Court. The reports were therefore sealed: … County Court erred in directing the public filing of three grand jury reports that accused each […]

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MAINTENANCE FEES IMPOSED BY THE TOWN FOR TRIMMING AND REMOVING BRUSH ON PRIVATE PROPERTY ARE NOT TAXES, THEREFORE THE TOWN IS NOT ENTITLED TO CREDIT FROM THE COUNTY FOR UNPAID MAINTENANCE FEES, TWO JUSTICE DISSENT (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court, over a two justice dissent, determined that maintenance fees imposed by the town for trimming and removing brush from private property are not taxes. Therefore the town cannot seek credit from the county for unpaid maintenance fees: Section 936 (1) of the RPTL [Real Property Tax Law] provides that […]

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