The Fourth Department, modifying Family Court, determined Family Court should have set a specific and definitive visitation schedule: Respondent mother appeals from an amended order that, inter alia, granted petitioner father’s petition to modify a prior custody order by awarding him primary physical custody of their daughter. We agree with the mother that Family Court […]
The Fourth Department, reversing defendant’s conviction and ordering a new trial, determined the portion of defendant’s videotaped statement that was allowed in evidence should have been suppressed, and the jury should not have heard defendant’s grand jury testimony because he was not competent to testify at the time: … [T]he court erred in suppressing only […]
The Fourth Department, reversing defendant’s conviction for possession of a controlled substance, determined the circumstantial evidence of constructive possession of the drugs found in an apartment was legally insufficient: Although defendant was present in the apartment at the time when the police executed the search warrant, “no evidence was presented to establish that defendant was […]
The Fourth Department, reversing County Court, determined defendant was entitled to a hearing on his motions to vacate his convictions on ineffective assistance grounds. The Fourth Department noted that, where some of the allegations of ineffective assistance are outside the record, a hearing on a motion to vacate can encompass all allegations of ineffective assistance, […]
The Fourth Department, reversing Supreme Court, determined defendant’s motion to suppress his statements should not have been granted. The People demonstrated defendant was not in custody when the statements were made: “In determining whether a defendant was in custody for Miranda purposes, [t]he test is not what the defendant thought, but rather what a reasonable [person], innocent of […]
The Fourth Department, modifying Supreme Court, determined plaintiff did not show that there was a continuity of ownership such that, pursuant to the de facto merger doctrine, the assets of defendant NYP Ag should be used to satisfy a judgment against NYP Management: “Traditionally, courts have considered several factors in determining whether a de facto […]
The Fourth Department determined a discovery violation had occurred, but it did not involve spoliation of evidence and striking defendant’s (the Clinic’s) answer was too severe a sanction. This is a medical malpractice action alleging a failure to diagnose breast cancer. The plaintiff sought reports generated by software (CAD) used to detect breast cancer: … […]
The Fourth Department determined the arbitrator’s award concerning the transfer of employees was indefinite and nonfinal: The arbitration proceeding arose from respondent’s plan to transfer certain employees previously assigned to work at a single location to new positions requiring them to alternate between two different work locations. The arbitrator’s opinion and award, among other things, […]
The Third Department, reversing the Workers’ Compensation Board, determined the claimant (wife of the decedent worker who died of cardiac arrest) was not notified the board would consider a medical file relating to a prior injury: Here, the Board relied on medical records apparently contained in the case file for a separate claim filed by decedent […]
The Third Department, reversing Supreme Court, determined defendant’s motion for summary judgment should not have been granted in this traffic accident case. Plaintiff’s decedent apparently backed into defendant’s lane of traffic from the median. There was conflicting evidence about defendant’s speed and the distance between decedent’s car and defendant (i.e., there was conflicting evidence about […]
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