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PEOPLE CONCEDED ROBBERY THIRD SHOULD HAVE BEEN SUBMITTED TO THE JURY AS A LESSER INCLUDED OFFENSE, NO NEED FOR A NEW TRIAL, CONVICTION REDUCED (FIRST DEPT). ​

The First Department, reversing (modifying) defendant’s conviction of robbery second, determined Supreme Court should have submitted robbery third to the jury as a lesser included offense. But because the People agreed that the conviction could be reduced to robbery third a new trial was not necessary: There was a reasonable view of the evidence supporting […]

DATE OF WOMAN’S DISAPPEARANCE, NOT THE STATUTORY DEFAULT DATE FIVE YEARS LATER, WAS THE CORRECT DATE OF DEATH (FIRST DEPT).

The First Department, reversing Surrogate’s Court, determined the date of the disappearance of Kathleen (January 31, 1982) , not the statutory default date (January 31, 1987) was the date of the Kathleen’s death: Petitioner submitted evidence that Kathleen disappeared without explanation, and without her car and personal effects, on January 31, 1982. Kathleen has not been seen […]

QUESTIONS OF FACT ABOUT THE CAUSE OF PLAINTIFF’S FALL AND DEFENDANT’S CONSTRUCTIVE NOTICE PRECLUDED THE AWARD OF SUMMARY JUDGMENT TO THE DEFENDANT IN THIS STAIRWAY SLIP AND FALL CASE (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined an issue of fact whether the defendant property owner had constructive notice of inconsistently worn and slippery steps precluded the award of summary judgment to the defendant. The First Department also found that the cause of the fall was sufficiently identified by plaintiff’s expert opinion, despite the difficulty […]

BUILDING INSPECTION REPORT STATED STAIRWAY WHERE PLAINTIFF FELL WAS IN NEED OF REPAIR, DEFENDANT SUBMITTED EVIDENCE OF GENERAL CLEANING PRACTICES, THEREFORE DEFENDANT DID NOT DEMONSTRATE IT DID NOT HAVE CONSTRUCTIVE OR ACTUAL NOTICE OF THE ALLEGED CRACK IN THE STAIRWAY (FIRST DEPT).

The First Department determined defendant property owner’s motion for summary judgment in this stairway slip and fall case was properly denied. Plaintiff alleged she tripped and fell on a crack in the stairway. A 2012 building inspection report stated that the stairway needed repair. And the defendant submitted only the building’s general cleaning routine: The […]

ACCIDENT DID NOT INVOLVE AN ELEVATION-RELATED RISK, DEFENDANT SUBCONTRACTORS DID NOT EXERCISE CONTROL OF THE PLAINTIFF, THE AREA OR THE WORK, DEFENDANTS’ SUMMARY JUDGMENT MOTIONS ON THE LABOR LAW 240 (1), 241 (6) AND 200 CAUSES OF ACTION SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the Labor Law 240 (1) cause of action should have been dismissed because the accident, tripping over a pile of sand on ground level, did not involve an elevation-related risk. The Labor Law 241 (6) and 200 causes of  action should have been dismissed because the defendants (subcontractors USRC […]

THE CASE INVOLVES A NEW JERSEY INSURANCE POLICY ISSUED TO A NEW JERSEY COMPANY WHICH WAS DOING SUBWAY WORK IN NEW YORK, PURSUANT TO A 2017 COURT OF APPEALS RULING, WHETHER NEW YORK INSURANCE LAW’S TIMELY DISCLAIMER STATUTE APPLIES DEPENDS ON WHETHER THE INSURED HAS A SUBSTANTIAL BUSINESS PRESENCE IN NEW YORK, MATTER REMITTED FOR DEVELOPMENT OF THE RECORD ON THAT ISSUE (FIRST DEPT).

The First Department, over an extensive two-justice dissent, determined the case, which was affected by a 2017 Court of Appeals decision, needed to be sent back for more fact-finding.  The Court of Appeals case, Carlson v American Intl. Group, Inc. (30 NY3d 288 [2017]), held that the timely disclaimer provisions of New York Insurance Law 3240 (d)(2) applied […]

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THE PEOPLE DID NOT PROVE AT THE SUPPRESSION HEARING THAT THE SEARCH OF DEFENDANT’S PERSON AFTER A STREET STOP WAS SUPPORTED BY PROBABLE CAUSE (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant’s motion to suppress items taken from his person should have been granted because the sequence of events which would have legitimized the search was not proven at the hearing: … [W]e agree with the People that the police had reasonable suspicion to detain defendant based on the […]

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AFTER THE PEOPLE HAD EXERCISED THEIR PEREMPTORY CHALLENGES TO JURORS AND DEFENSE COUNSEL HAD BEGUN EXERCISING HER PEREMPTORY CHALLENGES, THE TRIAL COURT ALLOWED THE PEOPLE TO BELATEDLY MAKE A PEREMPTORY CHALLENGE, THAT WAS REVERSIBLE ERROR (FIRST DEPT).

The First Department determined it was reversible error to allow the People to belatedly exercise a peremptory challenge to a juror (Mrs. C) after the People had indicated the chosen jurors were acceptable and the defense attorney had started exercising her peremptory challenges: “The right of peremptory challenge given to an accused person is a […]

DISMISSAL OF DEFENDANT’S COUNTERCLAIM FOR ADVERSE POSSESSION PROPERLY GRANTED, ELEMENTS OF PRE-AMENDMENT PROOF OF A CLAIM OF RIGHT APPLIED TO THE DISPUTED PROPERTY (SECOND DEPT).

he Second Department, after explaining the current law of adverse possession and finding that the prior (pre-amendment) law applied in this case, determined the defendant’s (Dominici’s) counterclaim seeking adverse possession of disputed property was properly dismissed: … [T]he 2008 amendments to the adverse possession statutes contained in RPAPL article 5 (see id.) are not applicable […]

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