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PETITIONER, IN THIS JUDICIARY LAW 509 PROCEEDING, CAN NOT COMPEL THE COMMISSIONER OF JURORS TO REVEAL THE RESPONDENT’S ADDRESS AND DATES OF JURY SERVICE IN ORDER TO IMPEACH RESPONDENT’S TESTIMONY THAT HE RESIDED IN PETITIONER’S BUILDING IN 2008 AND 2009 AND WAS THEREFORE ENTITLED TO LOFT LAW PROTECTION UNDER THE MULTIPLE DWELLING LAW (FIRST DEPT).

The First Department, over a dissent, determined the petitioner in this Judiciary Law 509 (a) proceeding was not entitled to compel the Commissioner of Jurors to disclose respondent’s (Swezey’s) home and mailing address, as well as the dates of Swezey’s jury service. Petitioner was seeking to disprove Swezey’s testimony that he resided in a building […]

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THE PUBLIC ASSISTANCE BENEFIT RECEIVED BY CLAIMANT DURING PARTICIPATION IN A WORK EXPERIENCE PROGRAM (WEP) CONSTITUTED WAGES FOR THE PURPOSE OF CALCULATING WORKERS’ COMPENSATION BENEFITS FOR ON THE JOB INJURY (THIRD DEPT).

The Third Department, in a matter of first impression, determined that the public assistance benefit received by claimant when he participated in the work experience program (WEP) constituted wages for the purpose of calculation the workers’ compensation benefit for injury on the job: Wages are defined as “the money rate at which the service rendered […]

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AUTOMOBILE EXCEPTION TO THE WARRANT REQUIREMENT APPLIES TO PARKED UNOCCUPIED CARS, SMELL OF MARIHUANA (FROM OUTSIDE THE CLOSED UNOCCUPIED CAR) PROVIDED PROBABLE CAUSE TO SEARCH THE CAR, OFFICER’S SUBJECTIVE INTENT TO SEARCH THE CAR BEFORE HE SMELLED THE MARIHUANA IS IRRELEVANT (THIRD DEPT).

The Third Department determined the warrantless search of defendant’s car, which was parked outside the apartment where defendant had been arrested, was valid under the automobile exception to the warrant requirement. The officer who opened the car door with keys taken from the defendant, testified that he smelled marihuana as he approached the car, and […]

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PAROLE OFFICER’S SEARCH OF PAROLEE’S APARTMENT, BASED UPON A TIP FROM A PERSON KNOWN TO THE PAROLE OFFICER, WAS SUPPORTED BY REASONABLE SUSPICION, TWO-JUSTICE DISSENT (THIRD DEPT).

The Third Department, reversing Supreme Court, over a two-justice dissent, determined that the parole officer’s, Rosa’s, search of defendant-parolee’s apartment, which was based on a tip from a person known to the parole officer, was supported by reasonable suspicion: Although a parolee does “not surrender his [or her] constitutional rights against unreasonable searches and seizures[,] . […]

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MOLINEUX/SANDOVAL HEARING IN THE HARVEY WEINSTEIN SEXUAL MISCONDUCT PROSECUTION WAS PROPERLY CLOSED TO THE PUBLIC AND THE RECORD OF THE HEARING WAS PROPERLY SEALED, NEWS-MEDIA COMPANIES’ PETITION TO UNSEAL THE RECORD DENIED (FIRST DEPT).

The First Department denied the Article 78 petition brought by news-media companies seeking to unseal the Molineux/Sandoval hearing transcript in the felony sexual misconduct prosecution of Harvey Weinstein. The presiding judge had closed the hearing to the public and sealed the record of it: While the First Amendment guarantees the public and the press a […]

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PLAINTIFF-STUDENT WAS WATCHING FOOTBALL PRACTICE FROM THE SIDELINES WHEN A BLOCKING SLED, PUSHED BY SEVERAL PLAYERS, VEERED OFF TO THE SIDE AND RAN OVER PLAINTIFF’S FOOT, THE ASSUMPTION OF THE RISK DOCTRINE APPLIES TO SPECTATORS, THE SCHOOL DISTRICT’S MOTION FOR SUMMARY JUDGMENT IN THIS NEGLIGENT SUPERVISION ACTION SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court in this negligent supervision action, determined plaintiff-student assumed the risk of injury from a blocking sled during football practice. Plaintiff was not feeling well and was on the sidelines watching practice. He was not paying attention when a blocking sled, pushed by several players, veered toward him and ran […]

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DEFENDANT DID NOT STRIKE PLAINTIFF AND WAS UNDER NO DUTY TO PROTECT PLAINTIFF FROM AN ASSAULT BY OTHERS, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS BAR-FIGHT CASE SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that defendant’s motion for summary judgment in this third-party assault bar-fight case should have been granted. Defendant did not strike the plaintiff and was not under a duty to protect plaintiff from the conduct of others: The plaintiff commenced this action, inter alia, to recover damages for personal […]

STATEMENT MADE BY BANK EMPLOYEE TO THE EFFECT THE BANK WAS CLOSING THE ACCOUNT BECAUSE OF CONCERNS ABOUT MONEY LAUNDERING WAS NON-ACTIONABLE OPINION, THE BANK’S MOTION FOR SUMMARY JUDGMENT IN THIS DEFAMATION CASE SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court in this defamation action, determined that defendant-bank’s (Capital One’s) motion for summary judgment should have been granted. The statement at issue, made by a bank employee named Mukhi,  was deemed to be non-actionable opinion: The plaintiff is a shareholder of a nursing home business, Parkview Care and Rehabilitation Center, […]

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PLAINTIFF’S MOTION TO SET ASIDE THE JURY VERDICT IN THE INTEREST OF JUSTICE SHOULD NOT HAVE BEEN GRANTED, THE COURT GRANTED THE MOTION BASED UPON REMARKS MADE BY DEFENSE COUNSEL DURING SUMMATION, REMARKS TO WHICH NO OBJECTION HAD BEEN MADE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion pursuant to CPLR 4404 (a) to set aside the jury verdict in this personal injury case should not have been granted. The jury found that plaintiff did not suffer a serious injury within the meaning of the no-fault law (Insurance Law § 5102(d)), and awarded plaintiff $50,000 […]

PLAINTIFF DEMONSTRATED STATEMENTS MADE BY DEFENDANT TO MANAGEMENT COULD BE INTERPRETED TO CLAIM THAT PLAINTIFF FILED A FALSE TAX RETURN USING DEFENDANT’S SOCIAL SECURITY NUMBER AND THAT PLAINTIFF STOLE FUNDS FROM THE COMPANY, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS DEFAMATION ACTION SHOULD HAVE BEEN GRANTED, DECISION INCLUDES A SUBSTANTIVE DISCUSSION OF THE ELEMENTS OF DEFAMATION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the statements made by defendant about plaintiff constituted actionable defamation and plaintiff’s motion for summary judgment should have been granted. The decision includes substantive explanations of the elements of defamation which are too detailed to fairly summarize here. In essence, defendant made statements which could be fairly […]

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