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THE ACCUSATORY INSTRUMENT CHARGING DEFENDANT WITH “FAILURE TO PROVIDE NECESSARY SUSTENANCE” FOR A DOG, AN A MISDEMEANOR, WAS NOT SUPPORTED BY NONHEARSAY FACTUAL ALLEGATIONS; INSTRUMENT DISMISSED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Rivera, determined the accusatory instrument charging defendant with “failure to provide necessary sustenance” for a dog was facially insufficient because no nonhearsay factual allegations supporting the charge were provided: The statute at issue is Agriculture and Markets Laws (AML) section 353: “A valid and sufficient […]

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THE CHARGES STEMMED FROM A DEMONSTRATION SPARKED BY THE POLICE KILLING OF GEORGE FLOYD; DEFENDANT THREW TWO MOLOTOV COCKTAILS TOWARD POLICE OFFICERS; THE EVIDENCE DEFENDANT ENGAGED IN “TERRORISM” WAS LEGALLY INSUFFICIENT; SENTENCE REDUCED (THIRD DEPT).

The Third Department, vacating defendant’s “terrorism” conviction and significantly reducing his sentence, in a full-fledged opinion by Justice McShan, determined the “attempted aggravated assault upon a police officer as a crime of terrorism” conviction was not supported by legally sufficient evidence. The charges stemmed from a demonstration sparked by the police killing of George Floyd […]

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THE OFFICE OF CHILDREN AND FAMILY SERVICES (OCFS) DID NOT EXCEED ITS AUTHORITY IN CREATING THE HOST FAMILY PROGRAM FOR TEMPORARY PLACEMENT OF CHILDREN AND FAMILIES (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Garry, over a two-justice dissenting opinion, determined the Office of Children and Family Services (OCFS) did not exceed its authority when creating the Host Family Home program for temporary placement of children and families. The appellants argued the Host Family Home program was essentially a foster […]

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THE NOTE WAS ENDORSED IN BLANK REQUIRING PLAINTIFF TO DEMONSTRATE POSSESSION OF THE NOTE AT THE TIME THE FORECLOSURE ACTION WAS COMMENCED; FAILURE TO DEMONSTRATE POSSESSION CONSTITUTED A FAILURE TO DEMONSTRATE STANDING TO FORECLOSE (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the plaintiff mortgage company did not demonstrate standing to foreclose. The note was endorsed in blank, meaning that it was payable to any bearer of the instrument. Therefore the plaintiff was required to show possession of the note at the time the action was commenced. The evidence submitted […]

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THE BEST EVIDENCE OF THE VALUE OF REAL PROPERTY FOR PROPERTY-TAX-ASSESSMENT PURPOSES IS A RECENT ARMS-LENGTH SALE; ASSESSMENT REDUCED (THIRD DEPT).

The Third Department, reversing Supreme Court and lowering the property tax assessment of petitioners’ property, determined the best evidence of the value of the property is an arms-length sale for an amount $750,000 less than the assessment: “In an RPTL article 7 tax certiorari proceeding, a rebuttable presumption of validity attaches to the valuation of […]

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HERE THE “BORROWER” SIGNED THE MORTGAGE AGREEMENT AND THEN CONVEYED A TWO-THIRDS INTEREST IN THE PROPERTY TO TWO “OWNERS” WHO DID NOT SIGN THE MORTGAGE AGREEMENT; THE BANK SOUGHT TO RECOVER THE COSTS OF MAINTAINING THE ALLEGEDLY ABANDONED PROPERTY UNDER “QUASI CONTRACT” THEORIES; THE QUASI-CONTRACT CAUSES OF ACTION WERE DISMISSED BECAUSE THE MORTGAGE AGREEMENT WAS DEEMED TO COVER THE “BORROWER” AND THE NONSIGNATORY “OWNERS” (SECOND DEPT).

The Second Department, reversing Supreme Court, in a full-fledged opinion by Justice Landicino, determined the bank’s (mortgagee’s) counterclaims for unjust enrichment, quantum meruit, an equitable lien and an equitable mortgage should have been dismissed. The bank was seeking reimbursement for costs associated with maintaining the mortgaged property which had allegedly been abandoned. Essentially, the Second […]

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THE ALLEGATION A SCAFFOLD COLLAPSED AND FELL ON PLAINTIFF SUPPORTED SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION; PLAINTIFF NEED NOT DEMONSTRATE THE SCAFFOLD WAS DEFECTIVE; THE FACT THAT PLAINTIFF DID NOT SEE THE SCAFFOLD FALL WAS IRRELEVANT (FIRST DEPT).

The First Department, reversing Supreme Court, determined the allegation that a scaffold collapsed and fell on plaintiff warranted summary judgment on the Labor Law 240(1) cause of action. The plaintiff was not required to show the scaffold was defective and the fact that plaintiff did not see the scaffold fall was not relevant: Plaintiff was […]

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THE PETITIONER DID NOT DEMONSTRATE THE CITY HAD TIMELY ACTUAL NOTICE OF THE NATURE OF HER CLAIM AND HER ALLEGATION THAT HER INJURIES PREVENTED HER FROM MAKING A TIMELY CLAIM WAS NOT SUPPORTED BY MEDICAL EVIDENCE; THE PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN DENIED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the petition for leave to file a late notice of claim against the city should not have been granted. Petitioner did not demonstrate the city had timey actual notice of the nature of the claim and did not submit medical records to support her excuse that her injuries […]

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SUPREME COURT HELD A HEARSAY STATEMENT ATTRIBUTED TO PLAINTIFF WAS ADMISSIBLE AS AN EXCITED UTTERANCE AND RAISED A QUESTION OF FACT IN THIS LADDER-FALL CASE; THE FIRST DEPARTMENT RULED THE STATEMENT WAS NOT MADE “UNDER STRESS OF EXCITEMENT” AND WAS THEREFORE INADMISSIBLE (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment in this Labor Law 240(1) ladder-fall case should have been granted. Plaintiff demonstrated a piece of duct, which should have been secured, fell and knocked him off the ladder. The defendant alleged that plaintiff told the foreman he fell because he jumped down […]

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