The Fourth Department, reversing (modifying) Supreme Court, determined that the fiber optic cables and equipment at issue constitute taxable property under RPTL 102, in that the statutory exception for radio and television signals was not demonstrated to be applicable: … [T]ax exclusions are never presumed or preferred and before [a] petitioner may have the benefit […]
The Fourth Department, reversing Supreme Court and dismissing the indictment on speedy trial grounds, determined the 87 day delay during which the People sought a superseding indictment was attributable to the People despite their “ready for trial” announcement and despite the absence of a specific request for an adjournment: … [The]period of delay was “attributable to […]
The Second Department, reversing Supreme Court, determined plaintiff bank’s unexcused failure to appear at a scheduled conference required denial of the bank’s motion to vacate a default judgment: Although CPLR 3215(c) was not an appropriate ground upon which to dismiss the complaint because the plaintiff initiated proceedings for the entry of a judgment by moving […]
The Second Department determined three causes of action in a lawsuit brought by a church (Eltingville) against the Synod and its Bishop (stemming from the Synod’s decision to place a school owned and operated by Eltingville under its control) were not justiciable in state courts because of the constitutional separation of church and state: … […]
The Fourth Department, vacating the guilty plea and dismissing the indictment, determined the handgun discarded by the defendant during a police chase should have been suppressed. The police were responding to information that a black male had discharged a weapon. There were several black males in the area and nothing indicated defendant was involved in […]
The Second Department, reversing defendant’s conviction, determined that the failure to include the justification defense on the verdict sheet may have led the jurors to believe they had to reconsider the justification defense for each count. The judge had correctly instructed the jurors to acquit on all counts if the justification defense applied, but the […]
The Second Department, reversing (modifying) Supreme Court determined the Labor Law 240 (1) and 241 (6) causes of action should not have been dismissed. There was conflicting evidence whether the plywood which flexed causing plaintiff to fall was over a three-foot deep hole or trench: … [T]here was conflicting deposition testimony regarding whether the plywood […]
The Fourth Department affirmed the award of money damages to claimant for personal injury. The claim did not specifically request lost wages as damages. The majority held the claim was not jurisdictionally deficient and the specific items of damage need not have been spelled out. The dissenter disagreed and argued the award for lost wages […]
The Fourth Department, over a two-justice dissent, reversed defendant’s manslaughter conviction as against the weight of the evidence. The defendant had been alone with the victim, his girlfriend’s 13-month-old son, for a short time on the day the baby vomited and was gasping for breath (May 2). The baby died hours later at the hospital. […]
The Fourth Department, reversing Supreme Court, over a dissent, determined that the products liability cause of action against the manufacturer of a gas pump fuel nozzle (Husky), and the premises liability cause of action against the gas station (Kwik Fill) should have been dismissed. The plaintiff was sprayed with diesel fuel as she attempted to […]
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