The Second Department, reversing Supreme Court, noted that the denial of a cross motion as untimely was improper because plaintiff did not mail the motion papers 21 days before the return date: The plaintiff served its motion by regular mail on March 17, 2016, with a return date of April 6, 2016. In order to […]
The Second Department dismissed the counts of the sexual-offense indictment which were rendered duplicitous by the trial evidence. The counts alleging sexual intercourse with the complainant when she was 13 were not duplicitous on the face of the indictment, but the complainant testified sexual intercourse occurred at least 20 times during each month alleged in the […]
The Second Department, reversing Supreme Court, determined that the company which hired plaintiff’s employer, New York Plumbing, and the property owner,, Park Plaza, were liable for plaintiff’s fall, pursuant to Labor Law 240 (1) and 241 (6). New York Plumbing was liable because it had the authority to supervise plaintiff’s work, even if it did not […]
The First Department, reversing defendant’s conviction, determined (1) defendant should have been allowed to present expert evidence of the cross-race effect on the ability of a witness to identify a defendant, and (2) the request to instruct the jury on the cross-race effect should have been granted. The First Department further held that the new (2017) […]
The First Department, reversing Supreme Court, determined the for cause challenge to a juror should have been granted: The court improvidently exercised its discretion in denying defendant’s challenge for cause to a prospective juror who repeatedly expressed a predisposition to credit police testimony, and a belief that innocent defendants would testify on their own behalf, […]
The First Department determined defendant’s motion for summary judgment on the Dram Shop Act cause of action was properly granted, but the negligence cause of action in this third-party assault case should not have been granted. There was uncontested evidence the assailant did not appear to be drunk when served. But there was a question […]
The First Department determined an unsigned form purporting to make respondent (Cunney) the beneficiary of decedent’s IRA was insufficient and did not constitute substantial compliance: The Surrogate correctly determined that, despite the decedent’s clear intent to designate respondent Cunney as the beneficiary of her IRAs, Cunney is not entitled to the proceeds of the IRAs […]
The Third Department, reversing Supreme Court, over a concurrence, determined there was a question of fact whether the insurers failed to settle a multi-million dollar medical malpractice claim in bad faith. The facts are interesting but too detailed to fairly summarize here: To establish bad faith in failing to settle a liability claim, the insured […]
The Third Department, reversing Supreme Court, determined that, although plaintiff had defaulted on an installment land sale contract (re: the payment of school taxes), defendant was not entitled to specific performance and was not entitled to cancellation of the contract and retention of the installment payments: “[T]he execution of a[n installment] contract for the purchase […]
The Third Department determined petitioner sex offender was entitled to a Frye hearing to determine the efficacy of an “other specified paraphilic disorder” (OSPD) diagnosis: … OSPD (nonconsent) is the primary diagnosis upon which respondent relied to demonstrate that petitioner suffered from a mental abnormality under Mental Hygiene Law article 10. Citing the lack of specific diagnostic […]
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