The Third Department, reversing defendant’s conviction by guilty plea, determined the complicated facts of this case nullified a benefit that was expressly promised as inducement to a guilty plea. Defendant had pled guilty to burglaries in two counties (Schenectady and Albany) as a persistent felony offender. Both persistent felony offender guilty pleas were overturned. His […]
The Third Department, modifying Supreme Court, determined plaintiff had raised a question of fact whether there was an oral contract for dock space for and storage of plaintiff’s boat at defendant marina: … [P]laintiff submitted a copy of an invoice from defendant that itemized the charges for winter storage and spring launch and showed that […]
The Third Department, announcing a new Third-Department rule governing expert witness disclosure in medical malpractice actions, in a full-fledged opinion by Justice McCarthy, determined plaintiffs are obligated to provide full disclosure of a prospective expert witness’s qualifications, even if the disclosure will identify the witness. Defendants may be entitled to a protective order prohibiting the […]
The First Department, affirming the denial of summary judgment and the denial of the motion to set aside the verdict in this probate action, determined evidence included in a settlement letter and hearsay relied upon an expert witness were properly admitted. The court further found that the missing witness jury instruction for the decedent’s treating […]
The Third Department, reversing Supreme Court, determined plaintiffs’ motion for a continuance to allow their expert to testify in this medical malpractice action should have been granted. When the expert … arrived in the late morning of December 1, 2016, he did not have his original file with him. According to the expert, he left […]
The Third Department determined the Commissioner of Health’s denial of petitioner’s application to the NYS Medical Indemnity Fund for about $12,000 for a lift which would allow a disabled child to use a pool was arbitrary and capricious: … [T]he Commissioner determined that the pool lift did not qualify, reasoning that “[a] pool is not […]
The Court of Appeals, in a full-fledged opinion by Judge Garcia, determined the requirement that retailers on Indian lands collect and remit taxes on cigarettes sold to non-Indian consumers did not violate the Indian Law or the Buffalo Creek Treaty of 1842: Plaintiffs commenced this action seeking (1) a declaration that Tax Law § 471 […]
The Court of Appeals, in a full-fledged opinion by Judge Wilson, determined the state was properly held 100% liable in this fatal motorcycle-truck collision case. The truck driver testified that he looked both ways and didn’t see the motorcycle before pulling out into the motorcycle’s lane of traffic. There had been 14 right-angle collisions at […]
The Court of Appeals, over an extensive dissenting opinion by Judge Rivera, affirmed defendant’s conviction for attempted possession of a weapon, i.e., a switchblade. The dissent argued that the proof at the non-jury trial and the allegations in the accusatory instrument did not demonstrate the knife met the statutory definition of a switchblade: From the dissent: … […]
The Second Department determined the city was properly found liable for the stabbing death of plaintiff’s decedent in a parking garage, but found that the city should not have been held 100% liable. Operating a parking garage is a proprietary function to which governmental immunity does not apply: Contrary to the City’s contention, it was […]
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