The Second Department, reversing (modifying) Supreme Court, determined a cause of action alleging legal malpractice should not have been dismissed: … [T]he complaint sufficiently stated a cause of action alleging legal malpractice. The complaint alleged that the defendants failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal […]
The Second Department, reversing the denial of the petition, determined the FOIL request for a memo prepared by the Chair of the Zoning Board of Appeals (ZBA) should not have been dismissed on the ground the petitioner had unsuccessfully sought to annul a determination by the ZBA. The matter was remitted for a review of […]
The Second Department, reversing Supreme Court, determined dismissing the complaint was not the appropriate remedy for petitioners’ failure to include necessary parties, the property owners,, in this Article 78 proceeding challenging zoning variances. Supreme Court should have directed the necessary parties be summoned. The courts power to summon necessary parties is not affected by the […]
The Second Department, reversing Supreme Court, determined the municipality (City of Middletown) did not owe a special duty to plaintiff police officer, who was bitten by a police dog during training: The dog handler, Officer McDonald (a City of Middletown police officer), and plaintiff were participants in training sessions conducted by the NYS Homeland Security […]
The First Department, reversing Supreme Court, determined the defense motion for judgment for summary judgment in this Labor Law 240(1) action should not have been granted and plaintiff’s cross-motion for summary judgment should have been granted. Plaintiff was crouching down marking off areas of the floor with duct tape when an ladder fell over and […]
The First Department, holding the judgment of conviction in abeyance and remitting the matter, in a full-fledged opinion by Justice Pitt-Burke, over a two-justice dissent, determined (1) the appeal raising an unpreserved objection to the trial judge’s handling of a Batson challenge could be considered “in the interest of justice,” and (2) the trial judge […]
The Third Department, granting defendant’s motion to suppress a handgun, over a dissent, determined the impoundment of defendant’s vehicle after a traffic stop was unnecessary and the search of the vehicle was not a valid inventory search: Maggs’ [the arresting officer’s] ambiguous testimony — essentially asserting that any vehicle parked on the street would be […]
The Third Department determined defendant was improperly questioned after he unequivocally asserted his right to remain silent, but found the error harmless: Approximately 45 minutes into the interview, after defendant had been provided his Miranda rights and answered numerous inquiries, defendant told the investigators that just prior to the shooting he observed a fight between […]
The Third Department, vacating the sexually violent offender designation, determined the failure to notify defendant that he would be classified as a violent sexual offender deprived defendant of due process resulting in his inability to argue his constitutional objections to the designation on appeal. The matter was remitted: Here, neither the Board nor the People […]
The Third Department, affirming the dismissal of the complaint, over a two-justice dissent, determined the “written notice” requirement in the City of Ithaca code applied to an arch-shaped bollard or barrier placed to protect a tree from being damaged by cars using a parking lot. As plaintiff’s child grabbed onto the bollard and swung from […]
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