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ACCUSATORY INSTRUMENT CHARGING DEFENDANT WITH PATRONIZING A PROSTITUTE WAS NOT JURISDICTIONALLY DEFECTIVE BECAUSE A CLINICAL PHRASE WAS USED TO DESCRIBE SEXUAL ACTIVITY (CT APP).

The Court of Appeals, reversing the appellate term, determined that the accusatory instrument charging defendant with patronizing a prostitute was not jurisdictionally defective: Giving the allegations “a fair and not overly restrictive or technical reading” … , and “drawing reasonable inferences from all the facts set forth in the accusatory instrument” … , the accusatory […]

LESSOR OF VEHICLE INVOLVED IN AN ACCIDENT DID NOT DEMONSTRATE IT WAS NOT LIABLE BASED UPON ITS MAINTENANCE OF THE VEHICLE, THEREFORE THERE WAS A QUESTION OF FACT WHETHER THE GRAVES AMENDMENT APPLIED (SECOND DEPT).

The Second Department determined defendant lessor of a vehicle involved in an accident (BCL) did not demonstrate it could not be liable under the Graves Amendment for negligent maintenance of the vehicle: Under the Graves Amendment, the owner of a leased vehicle will not be held vicariously liable for the negligent operation of that vehicle […]

SECOND MOTION TO VACATE A DEFAULT JUDGMENT SHOULD NOT HAVE BEEN GRANTED ON GROUNDS THAT COULD HAVE BEEN RAISED IN THE FIRST MOTION, SECOND MOTION SHOULD NOT HAVE BEEN TREATED AS A MOTION TO RENEW (SECOND DEPT).

The Second Department determined the motion to vacate a default judgment should not have been granted on grounds that could have been raised in the first motion (which was denied). The court further held that the second motion should not have been deemed a motion to renew, for essentially the same reason: The Supreme Court […]

MATERNAL GRANDMOTHER WAS A PERSON LEGALLY RESPONSIBLE FOR THE CARE OF THE CHILD AND THEREFORE WAS SUBJECT TO A NEGLECT FINDING (SECOND DEPT).

The Second Department determined the maternal grandmother met the definition of a person legally responsible for the child's (Talia's) care, against who a neglect finding can properly be made: Child protective proceedings encompass only abuse or neglect by a person who is a parent or other person legally responsible for the child's care … . […]

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PLAINTIFFS’ COMPLAINT DID NOT STATE PRIVATE AND PUBLIC NUISANCE CAUSES OF ACTION BASED UPON SINKHOLES ON PLAINTIFFS’ LAND WHICH ALLEGEDLY RESULTED FROM THE FAILURE OF A BULKHEAD ON DEFENDANT’S PROPERTY (SECOND DEPT).

The Second Department determined the plaintiffs did not state causes of action for private and public nuisance based upon the alleged effects of a body of navigable tidal water (Henry Street Basin) which is adjacent to plaintiffs’ and defendant’s properties. Plaintiffs alleged a bulkhead built by defendant was falling into disrepair resulting in sinkholes on […]

MOTION TO VACATE A DEFAULT JUDGMENT SHOULD HAVE BEEN GRANTED AS A MATTER OF LAW, SIMILARLY THE MOTION VACATE THE NOTE OF ISSUE AND CERTIFICATE OF READINESS SHOULD HAVE GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the motion to vacate the default judgment should have been granted as a matter of law (no showing of a meritorious defense was required) and the motion to vacate the note of issue and the certificate of readiness should have been granted as well: “As a general rule, […]

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COMPLAINT STATED A FRAUD CAUSE OF ACTION BASED UPON ALLEGED MISREPRESENTATIONS ABOUT INSURANCE COVERAGE MADE BY DEFENDANT TO THE INJURED PLAINTIFF, BUT DID NOT STATE A FRAUD CAUSE OF ACTION BASED UPON ALLEGED MISREPRESENTATIONS MADE BY DEFENDANT TO THE NONPARTY INSURER, THERE WAS NO ALLEGATION THE MISREPRESENTATIONS MADE TO THE INSURER WERE TO BE COMMUNICATED TO THE PLAINTIFF (SECOND DEPT).

The Second Department determined the fraud cause of action against the property insurer which had disclaimed coverage should have been dismissed.  Plaintiff was injured on property owned by defendant Kirit and insured by nonparty Liberty Mutual Insurance. The fraud cause of action based upon alleged misrepresentations about the insurance coverage made to plaintiff by Kirit […]

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THE CRIMINAL LAW DEFINITION OF SERIOUS PHYSICAL INJURY IS NOT THE STANDARD FOR ABUSE IN FAMILY COURT, THE STANDARD IS ‘CREATING A SUBSTANTIAL RISK OF SERIOUS INJURY’ (SECOND DEPT).

The Second Department, reversing Family Court, found that the child, Talia, was abused. Family Court had determined that Talia was not abused because her injuries did not meet the definition of serious physical injury as defined in the Penal Law. The Family Court Act criteria is “creating a substantial risk of serious injury:” We agree with […]

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