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PLAINTIFF ASSUMED THE RISK OF PARTICIPATING IN AN OBSTACLE COURSE RACE; PLAINTIFF FELL ATTEMPTING A ‘MONSTER CLIMB’ WHICH HAD BEEN ERECTED ON A ROADWAY WITH NO MATS BENEATH (SECOND DEPT).

The Second Department determined plaintiff assumed the risk of injury by participating in a “Monster Climb” knowing she could fall and knowing there were no protective mats. The event was an obstacle course race sponsored by defendants and held at a public park: … [T]he plaintiffs argued that the assumption of risk doctrine cannot apply […]

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DEFENDANT CONSTRUCTIVELY POSSESSED STOLEN PROPERTY FOUND IN THE BOILER ROOM OF A GARAGE WHERE DEFENDANT AND TWO OTHERS WERE HIDING FROM THE POLICE AFTER A MUGGING; VICTIM WAS PROPERLY ALLOWED TO IDENTIFY THE DEFENDANT IN COURT, DESPITE THE SUPPRESSION OF THE SHOWUP IDENTIFICATION (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Tom, determined defendant was properly convicted of constructive possession of property taken during a mugging, even though defendant, although present, did not participate in the mugging and was acquitted of robbery. The First Department further held that the victim was properly allowed to identify the defendant […]

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DEFENDANT IN THIS TRAFFIC ACCIDENT CASE SHOULD NOT HAVE BEEN ALLOWED TO TESTIFY SHE WAS NOT TICKETED; DAMAGES FOR PAIN AND SUFFERING SHOULD NOT HAVE BEEN INCREASED UNCONDITIONALLY BY THE TRIAL JUDGE, THE PROPER PROCEDURE IS TO ORDER A NEW TRIAL UNLESS DEFENDANT STIPULATES TO THE INCREASED DAMAGES (FOURTH DEPT).

The Fourth Department noted that defendant, in this traffic accident case, should not have been allowed to testify that she did not receive a traffic ticket. The court also noted that the trial judge properly determined the damages for past pain and suffering should be increased, but that the proper procedure is to order a […]

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ARGUMENT THAT PROBATION CONDITIONS ARE ILLEGAL SURVIVES A WAIVER OF APPEAL AND THE FAILURE TO PRESERVE THE ERROR (FOURTH DEPT).

The Fourth Department noted that defendant’s argument that the conditions of his probation were illegal survived a waiver of appeal and the failure to preserve the error: Defendant further contends … that the court imposed several unlawful conditions of probation. Initially, we note that defendant’s contentions are not encompassed by the valid waiver of the […]

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GAP IN BATHROOM STALL DOOR AT MCDONALD’S RESTAURANT, IN WHICH INFANT PLAINTIFF’S FINGER WAS PINCHED AND PARTIALLY SEVERED WHEN THE DOOR SLAMMED SHUT, WAS NOT UNREASONABLY DANGEROUS AND WAS OPEN AND OBVIOUS, TWO-JUSTICE DISSENT (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, determined that the gap in a bathroom stall door at a McDonald’s restaurant, in which infant plaintiff’s finger was pinched and partially severed when her brother slammed the door, was not an unreasonably dangerous condition. In addition, the court found the condition was open and obvious and there […]

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PLAINTIFF’S MOTION TO SET ASIDE THE DEFENSE VERDICT IN THIS MEDICAL MALPRACTICE CASE SHOULD HAVE BEEN GRANTED, THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE; THE VERDICT SHEET DID NOT REFLECT THE TRIAL EVIDENCE ON THE APPLICABLE STANDARD OF CARE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, over a two-justice dissent, determined plaintiff’s motion to set aside the defense verdict in this medical malpractice case should have been granted. Plaintiff alleged her bowel was perforated during surgery. The defense expert testified the bowel must be fully inspected as it is replaced, section by section. However, defendant […]

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A FAMILY COURT PROCEEDING IS CIVIL IN NATURE AND THE CONFRONTATION CLAUSE APPLIES ONLY IN CRIMINAL MATTERS, THEREFORE DOCUMENTS WRITTEN BY A PSYCHIATRIST WHO DID NOT TESTIFY WERE ADMISSIBLE (FOURTH DEPT).

The Fourth Department determined father’s right to confront witnesses in this termination-of-parental-rights proceeding was not violated by the admission in evidence of two documents written by a psychiatrist who did not testify. A Family Court proceeding is civil in nature and the Confrontation Clause applies only in criminal matters: Although the father’s contention is framed […]

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THE FAMILY OFFENSE PETITION DID NOT ALLEGE ALL THE ELEMENTS OF HARASSMENT SECOND DEGREE AND WAS PROPERLY DISMISSED (FOURTH DEPT).

The Fourth Department determined the portion of the family-offense petition which charged harassment in the second degree was properly dismissed because it did not allege all the elements of the offense: A person commits harassment in the second degree under Penal Law § 240.26 (3) when he or she, “with intent to harass, annoy or […]

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SENTENCING COURT MUST DIRECT THE MANNER IN WHICH RESTITUTION IS TO BE PAID, MATTER REMITTED, ISSUE SURVIVES A WAIVER OF APPEAL AND THE FAILURE TO PRESERVE THE ERROR (FOURTH DEPT).

The Fourth Department determined the sentencing court’s failure to direct how the restitution is to be paid required remittal. This illegal sentence issue is not foreclosed by a waiver of appeal or the failure to preserve the issue: … [T]here is merit to defendant’s contention that the restitution component of his sentence must be vacated […]

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PEOPLE FAILED TO PROVE THE VICTIM-AGE AND TIME-PERIOD ELEMENTS OF PREDATORY SEXUAL ASSAULT AGAINST A CHILD, CONVICTION REVERSED (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction for predatory sexual assault against a child. Essentially the People did not present evidence to support the assaults occurred before the victim turned 13 or during a period of less than three months (statutory criteria): Without narrowing the time frame, it is entirely possible that the testified-to instances of […]

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