The Fourth Department determined the Support Magistrate did not have jurisdiction to reduce father’s child support by distributing a tax refund: We agree with the mother, however, that the court erred in denying her … objection to that part of the Support Magistrate’s order that, in effect, distributed half of the parties’ tax refund to […]
The Fourth Department, reversing Supreme Court, determined the medical malpractice action should not have been dismissed as untimely. Plaintiff raised questions of fact supporting the application of the continuous-treatment toll of the statute of limitations. The court noted the fact plaintiff may have considered bringing a malpractice action did not signal the termination of treatment. […]
The Fourth Department, reversing Family Court, determined father did not demonstrate a change in circumstances that warranted visitation in his home, supervised by his new wife. The modified visitation was not demonstrated to be in the best interests of the children. The existing visitation arrangement, supervised by grandmother, was long-standing and was working well. In […]
The Fourth Department, over a two-justice dissent, determined the trial judge properly refused to instruct the jury on the lesser included offense of assault third degree. The dissenters disagreed: … [T]he court did not err in refusing to charge the jury on the lesser included offense of assault in the third degree (Penal Law § […]
The Fourth Department determined defendant demonstrated it was not an owner of the property where plaintiff was injured and therefore was entitled to summary judgment dismissing the Labor Law 240 (1) and 241 (6) causes of action. Defendant had leased the property from the state and then subleased the property to a non-party (EDGE). EDGE hired […]
The Fourth Department determined Family Court should not have delegated its authority to order the amount of supervised contact with the children mother is to be allowed and should not have conditioned further petitions by mother on permission from the court: … [T]he court erred in granting her only so much supervised contact as was […]
The Fourth Department, reversing Supreme Court, determined plaintiff’s motion to set aside the defense verdict in this personal injury case should have been granted. Defendant Keleher had placed cardboard over the floor opening to the basement in this house under construction. Plaintiff, whose presence was foreseeable, and who (allegedly) was aware of the opening in […]
The Fourth Department, reversing (modifying) Supreme Court, determined plaintiff’s strict liability cause of action in this injury-caused-by-a-horse action should not have been dismissed: Plaintiff commenced this action seeking damages for injuries that he sustained when he was trampled by defendant’s two horses, who broke free while plaintiff was assisting defendant in hitching the horses to […]
The Fourth Department, in finding the breach of fiduciary duty cause of action was sufficiently pled, noted that the cause of action must be pled with particularity pursuant to CPLR 3016 (b). Cohen & Lombardo, P.C. v Connors, 2019 NY Slip Op 00755 [169 AD3d 1399], Fourth Dept 2-1-19
The Fourth Department determined plaintiff’s motion for summary judgment on his Labor Law 240 (1) cause of action was properly granted. Plaintiff fell from the bucket of a backhoe which was being used to lift him to the roof, where he was to remove snow and ice: Labor Law § 240 (1) “applies where an […]
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