The First Department determined two lay witnesses were properly allowed to give their opinion that the person depicted in a video was the defendant: The court providently exercised its discretion in permitting two witnesses to give lay opinion testimony that defendant was the person depicted in photos from surveillance videotapes from areas in and around […]
The Fourth Department determined the judge should not have drawn an adverse inference against father for his failure to call his girlfriend as a witness without first informing father and giving father a chance to explain. The error was deemed harmless however: “A party is entitled to a missing witness charge when the party establishes […]
The Fourth Department, reversing Supreme Court, determined plaintiffs’ failure to comply with defendants’ demand for a 50-h hearing required dismissal of the complaint. Defendants were sued in their capacities as municipal employees acting within the scope of their employment: We agree with defendants that Supreme Court erred in denying the motion. “It is well settled that […]
The Fourth Department, sending the matter back to Family Court, determined Family Court did not make the requisite findings of fact in this family offense, custody and visitation case: … [W]e agree with the father that Family Court failed to adequately set forth its essential findings of fact (see CPLR 4213 [b]; Family Ct Act § […]
The Fourth Department, reversing Supreme Court, determined plaintiff judgment-creditor’s motion for summary judgment should have been granted. Plaintiff alleged a de facto merger between defendant Luigi’s Bakery Corp and its predecessor Luigi’s Family Bakery, making the Bakery Corp. liable for the Family Bakery’s debt: Factors courts consider in determining whether a de facto merger has […]
The Fourth Department, reversing Supreme Court, determined defendant’s motion for summary judgment in this intersection traffic accident case should have been granted. Plaintiff made a left turn in front of defendant. Plaintiff’s claim that defendant was proceeding through a yellow light did not raise a question of fact: … [W]e conclude that the record establishes […]
The Fourth Department, reversing Supreme Court, determined defendants did not demonstrate the threshold strip which allegedly caused plaintiff to slip and fall was not inherently dangerous and was trivial: “[W]hether a dangerous or defective condition exists on the property of another so as to create liability depends on the peculiar facts and circumstances of each […]
The Fourth Department remitted the matter for consideration whether defendant should be afforded youthful offender status. The original murder conviction was in 1992. Defendant was granted a new trial and pled guilty to manslaughter in 2016. The youthful offender issue survives a waiver of appeal: Defendant was 17 years old at the time he committed […]
The Fourth Department, reversing defendant’s convictions, determined that the showup indentification testimony should have been suppressed. The showup took place 90 minutes after the occurrence of the crime, in a hospital parking lot, where defendant was handcuffed and flanked by officers. The victim had already identified the defendant in a hospital-room showup procedure: We conclude […]
The Fourth Department, affirming Supreme Court’s suppression of a weapon found in a home, determined the police illegally entered the home and gained consent to search by misleading the woman in the home: Asked by defense counsel why he entered the home, the officer testified, “An individual who’s known to carry guns entered that house […]
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