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QUESTIONS OF FACT WHETHER DEFENDANT WAS A GENERAL CONTRACTOR AND WHETHER DEFENDANT HAD SUPERVISORY AUTHORITY OVER SAFETY CONDITIONS IN THIS LABOR LAW 240 (1) LADDER-FALL CASE (FIRST DEPT).

The First Department determined plaintiff’s motion for summary judgment in this Labor Law 240 (1) ladder-fall action was properly denied as against the alleged genera contractor, Edler. There was a question of fact whether Edler was a general contractor and whether Edler had the authority to supervise safety conditions: To be found a “general contractor” […]

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REPORT OF FIRE MARSHAL, WHO HAD NO INDEPENDENT RECOLLECTION OF HIS INVESTIGATION INTO THE CAUSE OF THE FIRE, WAS ADMISSIBLE PURSUANT TO THE BUSINESS RECORD EXCEPTION TO THE HEARSAY RULE, COURT SHOULD NOT HAVE CONSIDERED A NEW THEORY OF LIABILITY RAISED FOR THE FIRST TIME IN PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff could not defeat a summary judgment motion by raising a new theory of liability in the opposing papers: The report established that the fire marshal conducted an investigation at the subject premises and concluded that the fire in defendants’ building was caused by combustible clothing left in […]

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PURSUANT TO MILITARY LAW, PETITIONER SHOULD HAVE BEEN DEEMED TO HAVE SUCCESSFULLY COMPLETED HER NYC POLICE-OFFICER PROBATIONARY PERIOD BY VIRTUE OF HER DEPLOYMENT ON MILITARY DUTY DURING THE PROBATIONARY PERIOD (FIRST DEPT).

The First Department, reversing Supreme Court, determined that Military Law controlled and petitioner, a probationary NYC police officer, must be deemed to have satisfactorily completed her probation by virtue of her military deployment while on probationary status: Under New York City personnel rules, “[s]ubject to the provisions of the [M]ilitary [L]aw,” the computation of a […]

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LAW OFFICE FAILURE WAS A REASONABLE EXCUSE FOR FAILING TO ANSWER, DEFENDANT’S MOTION TO EXTEND THE TIME TO APPEAR SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined low office failure was a legitimate excuse for failing to serve an answer. Defendant had made a pre-answer motion to dismiss, thereby demonstrating defendant did not intend to abandon the action: Defendants satisfied the requirements of CPLR 3012(d), which authorizes an extension of time to appear or plead […]

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THE AFFIDAVIT WHICH PURPORTED TO DEMONSTRATE PLAINTIFF HAD STANDING TO BRING THE FORECLOSURE ACTION REFERRED TO UNIDENTIFIED AND UNPRODUCED RECORDS AND THEREFORE LACKED ANY PROBATIVE VALUE (FIRST DEPT).

The First Department, reversing Supreme Court, over a dissent, determined plaintiff failed to demonstrate standing to bring the foreclosure proceedings: Plaintiff cannot establish that the note was assigned to it by a written assignment prior to commencement of foreclosure proceedings. Therefore, it must “adequately prove[] that it did, indeed, have possession of the note prior […]

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POLICE BODY-WORN-CAMERA FOOTAGE DOES NOT CONSTITUTE A PERSONNEL RECORD AND IS NOT THEREFORE PROTECTED FROM RELEASE TO THE PUBLIC BY CIVIL RIGHTS LAW 50-a (FIRST DEPT).

The First Department determined police officers’ body-worn-camera footage did not constitute a personnel record within the meaning of Civil Rights Law 50-a. Therefore the Patrolmen’s Benevolent Assn. of the City of N.Y.’s petition for a preliminary injunction prohibiting release of the footage was properly denied: We find that given its nature and use, the body-worn-camera footage at […]

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POLICE EFFECTIVELY SEIZED DEFENDANT BY BLOCKING DEFENDANT’S VEHICLE WITH TWO POLICE CARS, BECAUSE THE SEIZURE TOOK PLACE IN THE ABSENCE OF REASONABLE SUSPICION A PARTICULAR PERSON WAS INVOLVED IN A CRIME THE TANGIBLE EVIDENCE SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction and suppressing the tangible evidence, determined the police effectively seized defendant by blocking in defendant’s vehicle with two police cars without sufficient cause: The conviction arises from a police encounter during which an officer approached the parked vehicle in which defendant was a passenger and observed that defendant was […]

THE ATTORNEY GENERAL DID NOT HAVE THE AUTHORITY TO PROSECUTE DEFENDANT IN THIS CRIMINAL CASE BECAUSE NO REQUEST WAS MADE BY THE SUPERINTENDENT OF THE STATE POLICE (FOURTH DEPT).

The Fourth Department reversed defendant’s weapons possession and sale convictions because the state Attorney General did not have the authority to prosecute the case. The Attorney General’s authority to prosecute a criminal case is triggered when a request is made by the head of an appropriate agency, here the Superintendent of the State Police. No […]

COUNTY COURT COULD NOT LEGALLY FULFILL THE SENTENCING PROMISE THAT INDUCED DEFENDANT’S GUILTY PLEA, PLEA VACATED AND THE MATTER REMITTED FOR THE IMPOSITION OF A SENTENCE WHICH COMPORTS WITH DEFENDANT’S EXPECTATIONS (FOURTH DEPT).

The Fourth Department determined defendant’s guilty plea was induced by a sentencing promise County Court could not fulfill. The plea was vacated and the matter was remitted for imposition of a sentence that comports with defendant’s expectations: Penal Law § 70.30 (3) provides that “the maximum term of an indeterminate sentence imposed on a person […]

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FOR CAUSE JUROR CHALLENGES SHOULD HAVE BEEN GRANTED, JURORS COULD NOT UNEQUIVOCALLY STATE THEY COULD PUT ASIDE THEIR RESERVATIONS AND BE FAIR AND IMPARTIAL, BECAUSE THERE WILL BE A NEW TRIAL AND BECAUSE AN APPELLATE COURT CANNOT CONSIDER ISSUES NOT RULED UPON BY THE TRIAL COURT, THE TRIAL COURT WAS DIRECTED TO CONSIDER TWO EVIDENTIARY ISSUES, ONE RAISED BY THE PEOPLE, AND ONE RAISED BY THE DEFENSE (FOURTH DEPT).

The Fourth Department reversed defendant’s conviction because for cause challenges to two jurors were denied. Neither juror gave unequivocal assurances that she could be fair and impartial, in fact one juror expressly said she would continue to think defendant was involved based solely on his presence in the courtroom. In the interest of judicial economy, […]

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