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QUESTION OF FACT WHETHER DEFENDANTS UNREASONABLY INCREASED THE RISK IN THIS HORSEBACK-RIDING-LESSON ACCIDENT CASE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant’s motion for summary judgment in this horseback-riding-lesson accident should not have been granted. Plaintiffs’ expert raised questions of fact whether defendants unreasonably increased the risk of riding: The expert opined that defendant unreasonably increased the risks of horseback riding by numerous acts and omissions, including selecting an […]

ALTHOUGH THERE WERE NO GUARD RAILS ON THE SCAFFOLD, PLAINTIFF DID NOT TIE OFF HIS HARNESS AND LANYARD, QUESTION OF FACT WHETHER PLAINTIFF’S CONDUCT WAS THE SOLE PROXIMATE CAUSE OF HIS INJURY FROM A FALL, SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE OF ACTION PROPERLY DENIED (FOURTH DEPT).

The Fourth Department determined there was a question of fact whether plaintiff’s conduct (not tying off a safety harness) was the sole proximate cause of his injuries from a fall. Therefore his motion for summary judgment on his Labor Law 240(1) cause of action was properly denied: Defendants had engaged claimant’s employer to sandblast and […]

BANK WHICH PURPORTEDLY ACCELERATED THE DEBT DID NOT HAVE STANDING TO DO SO, PLAINTIFF BANK ENTITLED ONLY TO THE UNPAID INSTALLMENTS WHICH ACCRUED DURING THE SIX YEARS PRIOR TO COMMENCING THE ACTION (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the bank which purportedly accelerated the debt was not a holder or assignee of the mortgage and did not own or hold the note. Therefore the debt was not accelerated. Plaintiff bank was entitled to the unpaid installments which accrued during the 6-year (and 90 day) period before […]

WHERE FATHER RELINQUISHED CUSTODY BY CONSENT, HE NEED NOT MAKE A THRESHOLD SHOWING OF A CHANGE IN CIRCUMSTANCES TO BE ENTITLED TO A HEARING ON HIS CUSTODY PETITION, NUMEROUS LEGAL AND FACTUAL ERRORS BY THE JUDGE REQUIRED THAT THIS MATTER BE SENT BACK FOR HEARINGS AND RULINGS ON CUSTODY AND VISITATION ISSUES RAISED BY THE FATHER’S PETITION (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined father’s petition for custody should not have been dismissed without a hearing because his prior relinquishment of custody was by consent and therefore no prior order had been issued denying father custody based upon extraordinary circumstances. Where there exists no prior order denying a parent custody based upon extraordinary circumstances, […]

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LIQUIDATED DAMAGES CLAUSE IN NON-COMPETE COVENANT ENFORCEABLE, ATTORNEY’S FEES NOT ENCOMPASSED BY THE LIQUIDATED DAMAGES (FOURTH DEPT).

The Fourth Department determined the liquidated damages provision in the non-compete covenant was enforceable and the defendant should have been granted summary judgment on its claim for attorney’s fees pursuant to the employment contract. Plaintiffs had argued the liquidated damages encompassed the defendant’s attorneys’ fees: … [W]e conclude that the court properly determined that defendant met […]

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SCHIZOPHRENIA DIAGNOSIS DID NOT JUSTIFY AN UPWARD DEPARTURE IN THIS SEX OFFENDER REGISTRATION ACT (SORA) RISK ASSESSMENT PROCEEDING (FOURTH DEPT).

The Fourth Department determined County Court should not have granted the People’s request for an upward departure in this Sex Offender Registration Act (SORA) risk assessment proceeding based upon a schizophrenia diagnosis: Although the risk assessment instrument prepared by the Board of Examiners of Sex Offenders classified defendant as a presumptive level two risk, County Court […]

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THE JUDGE DID NOT HAVE THE AUTHORITY TO GRANT DEFENSE COUNSEL’S REQUEST FOR A VIDEOTAPE OF AN INTERVIEW OF THE CHILD (ALLEGED) VICTIM IN THIS SEXUAL OFFENSE CASE, THE INTERVIEW WAS CONDUCTED BY A PRIVATE PARTY AND WAS DISCOVERABLE ONLY IF IT CONSTITUTED BRADY (EXCULPATORY) MATERIAL, THE JUDGE DID NOT VIEW THE TAPE TO DETERMINE WHETHER IT WAS BRADY MATERIAL (FOURTH DEPT).

The Fourth Department determined a County Court judge did not have the authority to grant the defense request for a videotape of an interview of the child (alleged) victim in this sexual offense case. The child was interviewed by a private child advocacy group (Bivona). The only ground upon which the court could grant the […]

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SENTENCING JUDGE DID NOT HAVE THE AUTHORITY TO ASSURE DEFENDANT OF ADMISSION INTO THE SHOCK PROGRAM, DEFENDANT’S PLEA VACATED (FOURTH DEPT).

The Fourth Department, vacating defendant’s guilty plea, determined the sentencing court did not have the authority to promise defendant would go to “shock camp” and defendant had relied on the judge’s promise when he pled guilty: The record establishes that the court believed it had the authority to grant defendant admission into a shock incarceration […]

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THE TRIAL JUDGE RESERVED DECISION ON DEFENDANT’S MOTION FOR A TRIAL ORDER OF DISMISSAL ON THE RESISTING ARREST CHARGE AND DID NOT RULE ON IT AFTER CONVICTION, ON APPEAL THE FAILURE TO RULE CANNOT BE CONSIDERED A DENIAL, MATTER REMITTED FOR A RULING (FOURTH DEPT).

The Fourth Department noted that the trial judge reserved decision on defendant’s motion for a trial order of dismissal on the resisting arrest charge. Because the judge never ruled on the motion, the matter was remitted for a ruling: Defendant also challenges the sufficiency of the evidence with respect to the conviction of resisting arrest. […]

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IMPORTANT WITNESS RECANTED HER TRIAL TESTIMONY, MOTION TO VACATE CONVICTION SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING (FOURTH DEPT). ​

The Fourth Department determined defendant motion to vacate his conviction should not have been denied without a hearing. A prosecution witness recanted her trial testimony: The motion was based on the affidavit of a prosecution witness who recanted her trial testimony that defendant admitted to her that he started a certain house fire. That testimony formed the […]

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