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APPEAL DISMISSED BECAUSE IT WAS FROM A STIPULATION ENTERED BY CONSENT, IT WAS NOT FROM AN APPEALABLE ORDER UNDER CPLR 5701, AND THE ISSUES COULD HAVE BEEN RAISED IN A PRIOR APPEAL, COUNSEL SHOULD HAVE NOTIFIED THE COURT OF THE PRIOR DISMISSED APPEAL (FOURTH DEPT).

The Fourth Department determined the appeal must be dismissed for three reasons: the stipulation appealed from was entered into by consent, the appeal is not from an appealable order under CPLR 5701, and the matters raised on appeal could have been raised on a prior appeal. The court noted that counsel should have informed the […]

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PETITIONER SEX OFFENDER HAD THE RIGHT TO APPEAL FROM A RULING WHICH GRANTED RELIEF REQUESTED IN THE ALTERNATIVE BUT DENIED THE MORE COMPLETE RELIEF REQUESTED, EVIDENCE SUPPORTED FINDING THAT PETITIONER SUFFERED FROM A MENTAL ABNORMALITY AND REQUIRED A REGIMEN OF STRICT AND INTENSIVE SUPERVISION AND TREATMENT (SIST) (FOURTH DEPT).

The Fourth Department determined petitioner had the right to appeal a ruling which granted relief he had requested in the alternative but denied the more complete relief requested in the petition. The court further found that the evidence supported the finding that petitioner is a detained sex offender with a mental abnormality and required a […]

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OWNER OF THE FARM AND HAY CONVEYOR OWED A DUTY OF CARE TO PLAINTIFF WHO WAS INJURED BY THE CONVEYOR, LICENSEES USING THE CONVEYOR ON OWNER’S LAND DID NOT OWE A DUTY OF CARE TO PLAINTIFF, WHO WAS A VOLUNTEER HELPING THE LICENSEES (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court determined there was a question of fact whether, Burdick, the owner of a farm and a hay conveyor, was liable for plaintiff’s injury from catching her finger in the unguarded conveyor chain. Burdick, as part of an oral agreement, allowed the Fosters to use the hay conveyor on […]

FAILURE OF NO-FAULT BENEFIT ASSIGNEE TO APPEAR AT EXAMINATIONS UNDER OATH (EUO’S) REQUESTED BY THE CARRIER IS NOT A DEFENSE TO THE CARRIER’S OBLIGATION TO PAY THE NO-FAULT CLAIMS WHERE COVERAGE HAS NOT BEEN TIMELY DENIED (FOURTH DEPT).

The Fourth Department, in a full-fledged opinion by Justice Peradotto, disagreeing with the First Department, reversing Supreme Court, determined that the defendant medical professional corporation’s failure to appear at examinations under oath (EUO’s) requested by plaintiff insurer (Nationwide) was not a defense to Nationwide’s obligation to pay no-fault claims submitted by defendant (where Nationwide had not timely […]

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FOUR TRAMADOL PILLS DID NOT CONSTITUTE DANGEROUS CONTRABAND, PROMOTING PRISON CONTRABAND FIRST DEGREE REDUCED TO SECOND DEGREE (FOURTH DEPT).

The Fourth Department, in a full-fledged opinion by Justice Curran, determined the Tramadol pills possessed by the inmate defendant did not constitute dangerous contraband, requiring a reduction of the conviction from promoting prison contraband first degree to second degree. The Fourth Department disagreed with the cases from other departments which held small amounts of drugs to […]

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DEFENDANT SHOULD HAVE BEEN ALLOWED TO PRESENT EVIDENCE OF A WITNESS’S MOTIVE TO LIE, PROMPT OUTCRY EVIDENCE SHOULD NOT HAVE INCLUDED THE IDENTITY OF THE ASSAILANT, CONVICTION REVERSED (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction, determined two evidentiary errors deprived defendant of a fair trial. Defendant was precluded from presenting evidence of a witness’s motive to lie, and the evidence of prompt outcry should not have included the identity of the assailant: It is well settled that ” [t]he right of an accused in […]

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FAMILY COURT DID NOT MAKE FACTUAL FINDINGS IN SUPPORT OF ITS GRANT OF SOLE CUSTODY, MATTER REMITTED (FOURTH DEPT).

The Fourth Department reversed Family Court’s custody ruling because the ruling was not supported by factual findings. The matter was remitted: It is “well established that the court is obligated to set forth those facts essential to its decision’ ” (…see CPLR 4213 [b]; Family Ct Act § 165 [a]). Here, the court utterly failed to […]

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TOWN’S MOTION FOR SUMMARY JUDGMENT IN THIS SNOWPLOW TRAFFIC ACCIDENT CASE SHOULD HAVE BEEN GRANTED, PLAINTIFF DID NOT RAISE A QUESTION OF FACT ABOUT WHETHER THE SNOWPLOW OPERATOR’S ACTIONS ROSE TO THE RECKLESS DISREGARD STANDARD IN THE VEHICLE AND TRAFFIC LAW (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant town’s motion for summary judgment in this snowplow traffic accident case should have been granted. Defendant alleged the plow blade was in his lane, but there was evidence the road markings were covered with snow: Vehicle and Traffic Law § 1103 (b) “exempts all vehicles actually engaged […]

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POLICE OFFICER TOOK PRECAUTIONS BEFORE ATTEMPTING A U-TURN TO PURSUE A SUSPECT AND COLLIDING WITH PLAINTIFF’S VEHICLE, MOMENTARY JUDGMENT LAPSE DOES NOT MEET RECKLESS DISREGARD STANDARD, CITY’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant city’s motion for summary judgment in this police-car traffic accident case should have been granted because the officer’s actions did not rise to the reckless disregard standard of Vehicle and Traffic La 1104. Plaintiff was behind the police car when the officer made an abrupt u-turn to […]

NEW YORK WORKERS’ COMPENSATION TREATMENT GUIDELINES APPLY TO CLAIMANTS WHO HAVE MOVED TO AND ARE TREATED IN OTHER STATES (THIRD DEPT).

The Third Department determined the Workers’ Compensation Board properly ruled that the guidelines for back pain treatment applied to claimant in Nevada. Claimant qualified for benefits in New York in 1996 and moved to Nevada in 2005: … [W]e disagree with claimant that the Board impermissibly departed from its earlier decisions, as the Board acknowledged […]

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