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DEFENDANT POLICE OFFICER WAS ENGAGED IN AN “EMERGENCY OPERATION” WITHIN THE MEANING OF VEHICLE AND TRAFFIC LAW 1104 WHEN HIS POLICE VAN STRUCK PLAINTIFF AS SHE STEPPED INTO THE ROAD FROM BETWEEN PARKED CARS; DEFENDANT DID NOT ACT WITH RECKLESS DISREGARD FOR THE SAFETY OF OTHERS AND, THEREFORE, COULD NOT BE HELD LIABLE FOR PLAINTIFF’S INJURIES (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant police officer’s motion for summary judgment dismissing the complaint should have been granted. Plaintiff was struck by defendant’s police van when plaintiff stepped into the road from between two parked cars. Defendant police office was responding to an “assault in progress” when plaintiff was struck: Defendants demonstrated […]

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SUBSTITUTE TEACHER NOT ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS FOR THE PERIOD BETWEEN TWO SUCCESSIVE ACADEMIC YEARS DURING THE PANDEMIC BECAUSE HE RECEIVED ASSURANCE OF CONTINUED EMPLOYMENT; TWO-JUSTICE DISSENT (THIRD DEPT).

The Third Department, over a two-justice dissent, determined claimant, a substitute teacher, was not entitled to unemployment insurance benefits between two successive academic years (during the COVID pandemic) because he had received assurance of continued employment. The dissenters disagreed with the majority’s conclusion claimant had been assured of continued employment: “[P]ursuant to Labor Law § […]

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THE JUDGE SHOULD NOT HAVE SUMMARILY DENIED DEFENDANT’S REQUEST TO REPRESENT HIMSELF WITHOUT CONDUCTING A COLLOQUY; THE SEARCH WARRANT DID NOT DEMONSTRATE PROBABLE CAUSE FOR THE SEARCH OF DEFENDANT’S CELL PHONES; NEW TRIAL ORDERED (THIRD DEPT). ​

The Third Department, reversing defendant’s conviction and ordering a new trial, determined (1) defendant’s request to represent himself should not have been summarily denied, and (2) the search warrant did not provide probable cause for the search of defendant’s cell phones: A court may not summarily deny a defendant’s request to represent himself or herself, […]

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AT THE SUPPRESSION HEARING THE PEOPLE FAILED TO PROVE THE LEGALITY OF THE TRAFFIC STOP, WHICH WAS BASED UPON DEFENDANT’S MAKING U-TURNS, AND THE SUPPRESSION MOTION WAS GRANTED; THE PEOPLE SHOULD NOT HAVE BEEN ALLOWED TO REARGUE THE MOTION AND PRESENT EVIDENCE DEMONSTRATING THE U-TURNS WERE, IN FACT, ILLEGAL (CT APP).

The Court of Appeals, reversing the Appellate Term, determined the judge in this DWI prosecution should not have granted the People’s motion to reargue the suppression motion. The court had initially granted defendant’s motion to suppress because the People failed to prove U-turns made by the defendant were illegal. When the suppression motion was reargued, […]

A PATROL OFFICER’S FALLING INTO A HOLE DUG FOR A SEWER LINE WHILE INVESTIGATING, AT NIGHT, A SUSPICIOUS LIGHT FROM A VACANT HOUSE UNDER CONSTRUCTION WAS NOT AN “ACCIDENT” WITHIN THE MEANING OF THE RETIREMENT AND SOCIAL SECURITY LAW (CT APP). ​

The Court of Appeals, affirming the Appellate Division, determined petitioner, a former police officer, was not injured in an “accident” within the meaning of the Retirement and Social Security Law. Therefore, petitioner was not entitled to accidental disability retirement (ADR) benefits. Petitioner, at night, was investigating a suspicious light in a vacant house which was […]

AN INCIDENT WHICH “COULD OR SHOULD HAVE REASONABLY BEEN ANTICIPATED” IS NOT AN “ACCIDENT” WITHIN THE MEANING OF THE RETIREMENT AND SOCIAL SECURITY LAW (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge Halligan, affirming the Appellate Division, determined petitioner, a former police officer, was not entitled to accidental disability retirement (ADR) benefits for injuries suffered when a wheel on his desk chair caught in a rut and the chair began to tip over backwards. Petitioner, who was […]

PLAINTIFF WAS STRUCK BY A LADDER WHICH FELL BECAUSE IT WAS PLACED ON A SLIPPERY MAT; PLAINTFF WAS ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION; DEFENDANT’S MOTIONS FOR SUMMARY JUDGMENT ON THE LABOR LAW 241(6) AND 200 CAUSES OF ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined defendant’s motions for summary judgment on the Labor Law 240(1), 241(6) and 200 causes of action should not have been granted. In addition, plaintiff was entitled to summary judgment on the Labor law 240(1) cause of action. Plaintiff was working at ground level. A coworker placed a ladder […]

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PLAINTIFF PREVAILED IN THIS BREACH OF CONTRACT ACTION; HOWEVER, ABSENT A CONTRACT PROVISION, OR A STATUTE OR COURT RULE ALLOWING THE AWARD, PLAINTIFF WAS NOT ENTITLED TO ATTORNEY’S FEES (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined plaintiff should not have been awarded attorney’s fees in this breach of contract action because the contract did not so provide: “New York follows the general rule that attorney’s fees are incidents of litigation and a prevailing party may not collect them from the loser unless an award […]

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A CONDITIONAL ORDER OF DISMISSAL PURSUANT TO CPLR 3216 WHICH DOES NOT STATE THE FAILURE TO FILE A NOTE OF ISSUE WITHIN 90 DAYS WOULD BE THE BASIS OF A MOTION TO DISMISS THE COMPLAINT IS INEFFECTIVE AND CAN BE VACATED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the conditional order of dismissal should have be vacated because it did not indicate that plaintiff’s failure to file a note of issue within 90 days would be the basis for a motion to dismiss: “‘CPLR 3216 permits a court, on its own initiative, to dismiss an action […]

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DEFENDANT BOUGHT THE FORECLOSED PROPERTY WITHOUT KNOWLEDGE THE JUDGMENT OF FORECLOSURE AND SALE HAD BEEN APPEALED; DEFENDANT WAS A PURCHASER IN GOOD FAITH AND FOR VALUE AND WAS THEREFORE INSULATED FROM THE EFFECTS OF THE APPELLATE REVERSAL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant (Bartlett) was a purchaser in good faith and for value of the foreclosed property. The foreclosure was reversed on appeal. Defendant, as the fee owner of the property, was insulated from the effects of the reversal: Where a judgment of foreclosure and sale is reversed on appeal, […]

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