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PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION, A CABLE TRAY FELL ON HIS HEAD FROM THE TOP OF TWO LADDERS, A SUBCONTRACTOR WAS LIABLE BECAUSE THE CONTRACT DELEGATED THE AUTHORITY TO CONTROL THE WORK TO THE SUBCONTRACTOR, THE LESSEE WAS LIABLE AS AN “OWNER” WITHIN THE MEANING OF LABOR LAW 240 (1) (FIRST DEPT).

The First Department determined plaintiff’s motion for summary judgment on his Labor Law 240 (1) cause of action was properly granted. A cable tray that was on top of two ladders fell on plaintiff’s head. The court further noted that USIS was liable as an agent of the owner because the subcontract delegated the authority […]

IN THE FACE OF BATSON CHALLENGES, THE FACTS THAT A JUROR HAD SERVED ON A HUNG JURY AND WORKED AT A SOUP KITCHEN AND ANOTHER JUROR WORKED FOR A COMMUNITY ORGANIZATION HELPING HIV-POSITIVE DRUG USERS WERE DEEMED VALID, RACE-NEUTRAL REASONS FOR STRIKING THE JURORS, THE CONCURRENCE NOTED THESE REASONS WERE BASED UPON QUESTIONABLE ASSUMPTIONS (FIRST DEPT)

The First Department determined the reasons provided by the prosecutor for striking jurors in the face of Batson challenges were race-neutral. The concurrence called into question the validity of striking jurors on the basis of a “questionable assumption that social service workers, who volunteer in soup kitchens and work in HIV clinics, and persons who satisfy […]

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EVIDENCE THAT DEFENDANT SEX OFFENDER SUFFERS FROM UNSPECIFIED PARAPHILIC DISORDER (USPD) MAY BE ADMISSIBLE IN AN ARTICLE 10 TRIAL, THE EVIDENCE WAS EXCLUDED BELOW, VERDICT VACATED AND PETITION REINSTATED (FIRST DEPT).

The First Department, reversing Supreme Court, determined that evidence of unspecified paraphilic disorder (USPD) can be admitted in a sex offender civil management trial. The evidence was excluded at the Mental Hygiene Law article 10 trial. The verdict that defendant does not suffer from a mental abnormality was vacated and the petition was reinstated: In Matter […]

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THE PUBLIC SERVICES COMMISSION HAS THE AUTHORITY TO IMPOSE RATE CAPS AND OTHER RESTRICTIONS ON ENERGY SERVICE COMPANIES WHICH USE THE PUBLIC UTILITY INFRASTRUCTURE TO DELIVER ELECTRICITY TO CONSUMERS (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Stein, determined the Public Service Commission (PSC) has the authority to impose rate caps on energy service companies (ESCOs) who use the public utility infrastructure: … [W]e are asked to determine whether the Public Service Law authorizes the Public Service Commission (PSC) to issue an […]

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THE MAJORITY DID NOT RULE OUT THE POSSIBILITY THAT THE NON-DEADLY-FORCE JUSTIFICATION-DEFENSE JURY INSTRUCTION COULD BE APPROPRIATE IN A SECOND DEGREE ASSAULT CASE, BUT HELD THAT GIVING THE DEADLY-FORCE JUSTIFICATION-DEFENSE INSTRUCTION WAS NOT ERROR HERE (CT APP).

The Court of Appeals, over a concurrence, determined the jury was properly instructed on the “deadly force” justification defense on the assault second count. Defendant was convicted of beating the victim with a belt with a metal buckle, which was deemed a “dangerous instrument.” The defendant argued he was entitled to the “non-deadly” or “ordinary” […]

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BECAUSE THE DEFENDANT DREW HIS GUN BEFORE THE UNARMED VICTIM “SWIPED” AT IT, THE DEFENDANT WAS THE INITIAL “DEADLY FORCE” AGGRESSOR AND WAS NOT ENTITLED TO THE JUSTIFICATION-DEFENSE JURY INSTRUCTION (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Wilson, reversing the Appellate Division, determined defendant (Mr. Brown) was not entitled to the jury instruction on the justification defense. The Court of Appeals found that the defendant was the initial “deadly force” aggressor because he was wielding the gun before the unarmed victim (Mr. Cabbagestalk) “swiped” […]

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THE TRIAL JUDGE’S NEGOTIATION OF A PLEA DEAL DIRECTLY WITH THE CO-DEFENDANT, IN RETURN FOR THE CO-DEFENDANT’S ESSENTIAL TESTIMONY IDENTIFYING THE DEFENDANT AS ONE OF THE ROBBERS DEPICTED IN A VIDEO, DEPRIVED DEFENDANT OF HIS RIGHT TO A FAIR TRIAL (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Stein, over a concurrence, reversing the Appellate Division, determined  the trial judge had deprived defendant of a fair trial by negotiating a plea agreement directly with the co-defendant in return for the co-defendant’s testimony against the defendant. Although the defendant and co-defendant in this robbery […]

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WAIVER OF DECLARATORY JUDGMENT ACTIONS TO RESOLVE DISPUTES ARISING FROM A LEASE WAS NOT AGAINST PUBLIC POLICY AND WAS ENFORCEABLE, THE COMMERCIAL LEASE WAS NEGOTIATED BY SOPHISTICATED, COUNSELED PARTIES (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, over a three-judge dissenting opinion, determined that the clause in a commercial lease which waived any action for a declaratory judgment concerning lease provisions, and required all disputes to be adjudicated in summary proceedings, was not against public policy and was therefore enforceable: … […]

ALTHOUGH THERE IS CLEARLY A NEED FOR A STATUTORY MECHANISM TO KEEP CHILDREN WHO ABSCOND FROM PLACEMENT SETTINGS OFF THE STREETS AND SAFE FROM HARM, FAMILY COURT ACT 153 DOES NOT AUTHORIZE AN ARREST WARRANT FOR THIS PURPOSE (FIRST DEPT)

The First Department, in a full-fledged opinion by Justice Tom, determined that Family Court Act 153 does not authorize an arrest warrant for children who abscond from home or placement settings, notwithstanding that the arrest warrant is issued to keep the child safe and off the streets, and to ensure the child does not engage […]

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THE HOSPITAL DEFENDANT WAS PROPERLY PRECLUDED FROM PRESENTING THE CPLR ARTICLE 16 DEFENSE AFTER THE OTHER POTENTIALLY LIABLE DEFENDANTS HAD BEEN SEVERED FROM THE ACTION AT THE HOSPITAL DEFENDANT’S REQUEST, AND AFTER THE HOSPITAL DEFENDANT HAD REPRESENTED TO THE COURT THE OTHER POTENTIALLY LIABLE DEFENDANTS WOULD NOT BE PART OF THE TRIAL, TWO JUSTICE DISSENT, THE HOSPITAL DEFENDANT’S REQUEST FOR THE ERROR IN JUDGMENT JURY INSTRUCTION WAS PROPERLY DENIED (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, determined defendant hospital was properly precluded from presenting a CPLR article 16 defense (pursuant to the defense, a party deemed 50% liable or less pays only that portion of the damages) in this medical malpractice action. Plaintiff’s decedent was first treated at defendant hospital and then at defendant […]

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