A waiver of the right to appeal is unenforceable where there is “no promise, plea agreement, reduced charge, or any other bargain or consideration given to the defendant in exchange for [her] plea…”. For that reason the Second Department determined defendant’s waiver of appeal was invalid and she could appeal her sentence. People v Brady-Laffer, […]
The Second Department applied the rule that an insurer’s duty to defend under a policy is broader than its duty to indemnify. Because the language of the policy was broad enough to cover the cause of action for unfair competition, the insurer was obligated to defend, in spite of the fact that the related breach […]
In a condemnation case where a portion of a sand and gravel quarry was taken, the Second Department affirmed the lower court’s valuation of the condemned property. The quarry owner argued that an income-based analysis, rather than a sales-comparison (land-value) approach, should be employed. The Second Department determined that the income-based analysis (projected profits minus […]
In an inmate’s disciplinary hearing, the hearing officer’s refusal to allow an inmate to call witnesses, without providing the inmate with a written statement explaining the reasons for the refusal, together with the hearing officer’s refusal to allow the inmate to question witnesses, required a new hearing before a new hearing officer. In the Matter […]
Defendant’s claim that a DNA analyst’s expert testimony violated the Confrontation Clause because it was based on reports made by non-testifying witnesses was rejected, principally because the claim was deemed unpreserved. There is a substantive discussion of preservation requirements. The Court, however, noted that the Court of Appeals held a similar DNA report was nontestimonial […]
The fact that the plaintiff signed a general release and hold-harmless agreement was not enough to settle the case. There was no proof the plaintiff’s attorney communicated plaintiff’s acceptance of the settlement offer to the defendant or defendant’s insurance carrier. Therefore, plaintiff, with a new attorney, was allowed to go forward with the lawsuit and […]
Before a party can be estopped from denying paternity the court must be convinced applying equitable estoppel is in the best interest of the child. Here the child was eight years old, knew the respondent as her father, with his encouragement, and relied on respondent to be her father. Family Court’s finding the respondent was […]
The Second Department allowed plaintiff to serve a late notice of claim against the defendant School District because: (1) the School District was made aware of the facts constituting the claim within the 90-day statutory period (shown by a medical claim completed by the school principal); (2) there was a reasonable excuse for the delay […]
Plaintiff, a patient at defendant medical center, was assaulted by another patient. Shortly after the incident plaintiff’s attorney sent a letter to the medical center asking that it preserve all records of the incident, including videotape. The letter was apparently never forwarded to the defendant’s risk management department and any videotape of the incident was […]
In a medical malpractice action, where the plaintiff has a respondeat superior claim against a hospital based on the actions of nonparty physicians, the failure to name the individual doctors upon whom the claim is based within the applicable statute of limitations period does not compel dismissal of the vicarious liability claim against the hospital. […]
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