The Second Department determined this slip and fall case properly survived summary judgment. Plaintiff alleged her foot was caught in a one-inch gap at the top of exterior steps: While testifying at her deposition, the plaintiff identified photographs that demonstrated that the gap was at least one inch wide and at least one inch deep […]
The Second Department determined Supreme Court should have considered evidence submitted by the defendant in its reply papers and further determined that the negligent maintenance cause of action properly survived summary judgment in this playground injury case. Infant plaintiff was injured when she fell from playground equipment during recess. The negligent supervision cause of action […]
The Second Department, reversing Supreme Court, determined defendants did not demonstrate they lacked constructive notice of the crumbling asphalt around a sewer grate in this slip and fall case. Defendants’ motion for summary judgment should not have been granted: A property owner, or a party in possession or control of real property, has a duty […]
The Second Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this medical malpractice action should have been granted. Plaintiff was treated by an ophthalmologist for eye pain. The doctor suspected glaucoma. Six months later plaintiff was diagnosed with meningioma, a noncancerous tumor of the membranes surrounding the brain. Plaintiff’s expert did not […]
The Second Department, reversing Supreme Court, determined defendant store (Fairway) should not have been sanctioned (adverse inference jury instruction) for spoliation of evidence, i.e., videotape depicting areas outside the store. Plaintiff slipped and fell on ice in an area near the entrance to the store. The videotape from the camera which captured the fall was […]
The Second Department, noting the outcome of the appeal by a co-defendant, in the interest of justice, determined defendant’s kidnapping convictions should be vacated pursuant to the merger doctrine. Defendant was convicted of murder, kidnapping, burglary and robbery: The defendant and Domingo Mateo were indicted on charges of murder in the second degree, kidnapping in […]
The Second Department determined the record supported defendant’s contention that Supreme Court did not inform him of the deportation consequences of his guilty plea. The matter was sent back to allow defendant to move to vacate his plea: … [W]e remit the matter to the Supreme Court, Queens County, to afford the defendant an opportunity […]
The Second Department, vacating defendant’s sentence, determined defendant’s waiver of appeal was invalid and the sentencing court was required to consider youthful offender status, even when not requested: The defendant’s purported waiver of his right to appeal was invalid … . Although the defendant signed a written waiver, the Supreme Court provided the defendant with […]
The Second Department, reversing defendant’s conviction, determined that the jury should have been instructed not to consider lesser offenses if it found defendant was not guilty of the greater charge on the basis of justification. The court noted that, on retrial, the jury should be instructed on two categories of assault third as lesser included […]
The Second Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment on his Labor Law 240 (1) cause of action should have been granted. Plaintiff was struck a a piece of plywood after the supporting vertical post was removed: Labor Law § 240(1) imposes upon owners, general contractors, and their agents a nondelegable duty […]
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