The Second Department determined defendant was denied his right to counsel when defense counsel told the court he did not want to be a party to defendant’s motion to withdraw his guilty plea: The defendant stated that he wished to withdraw his plea of guilty on the grounds that he was innocent and that he […]
The Second Department determined that a 2015 Court of Appeals decision holding that a jury cannot be instructed that it could find defendant guilty of both depraved indifference murder and intentional murder of a single victim should not be applied retroactively. Defendant was shooting at another when he struck and killed his accomplice: In People v Dubarry (25 […]
The Second Department noted that defendant driver’s allegation that plaintiff driver stopped suddenly in this rear end collision case was not sufficient to create a question of fact: … [T]he plaintiff demonstrated his prima facie entitlement to judgment as a matter of law on the issue of liability by averring that he was stopped at […]
The Second Department, reversing Supreme Court, determined that the town should be held in contempt for failure to erect a fence on town land in accordance with a stipulation. Plaintiff had requested the fence because people were crossing town land to trespass on plaintiff’s property: “In order to sustain a finding of civil contempt, it is not […]
The Second Department, reversing Supreme Court, determined that, absent a showing of misconduct, the guardian of the property of an incapacitated person should not have been required to pay the accountant used to prepare the final account from her own funds: A court is authorized to award “reasonable compensation” to a guardian (Mental Hygiene Law […]
The Second Department determined the contested matters had already been ruled upon in a prior appeal and therefore constituted the law of the case which must be followed. The contrary ruling by Supreme Court was reversed: “An appellate court’s resolution of an issue on a prior appeal constitutes the law of the case and […]
The Second Department determined that the doctrine of incorporation by estoppel was properly applied in this breach of contract (lease) case. Although plaintiff limited liability company did not exist at the time the lease was signed, defendant took possession of the property. Defendant was therefore estopped from escaping liability under the lease based on the […]
The Second Department, reversing Family Court, determined that Hawaii should not have been found to be the more appropriate forum for this custody proceeding without first assuring that all the findings made in Hawaii were vacated. Mother had moved to Hawaii and her custody proceedings there were completed before the Hawaii court was alerted by […]
The Second Department, reversing Supreme Court, held that whether the public sector employment matter was arbitrable under the terms of the collective bargaining agreement (CBA) must first be determined by the arbitrator, not the courts. The city had issued new protocols for first responders in the EMS program concerning active shooters, animal bites, suspicious packages, medical […]
The Second Department, reversing (modifying) Supreme Court, determined that defendants’ motion for summary judgment in this slip and fall case should not have been granted. Plaintiff police officer was patrolling defendants’ property (at defendants’ request) when he slipped and fell an on outside stairway. Both the negligence cause of action and the General Municipal Law […]
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