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PLAINTIFF WAS NOT ALTERING OR ERECTING A STRUCTURE WITHIN THE MEANING OF LABOR LAW 240 (1), DEFENDANT PROPERTY OWNER DID NOT EXERCISE SUPERVISORY CONTROL OVER THE METHOD OR MANNER OF PLAINTIFF’S WORK, PLAINTIFF’S LABOR LAW 240 (1) AND 200 CAUSES OF ACTION PROPERLY DISMISSED (THIRD DEPT).

The Third Department determined plaintiff was not engaged in an activity protected by Labor Law 240 (1) when he was injured and the defendant owner of the property did not supervise or control the manner of plaintiff’s work, requiring dismissal of the Labor Law 200 cause of action as well. The plaintiff worked for a car […]

THE LAWSUIT ALLEGED ANTITRUST VIOLATIONS, WHICH ARE EXCLUDED FROM COVERAGE, THE PASSING REFERENCES TO PRODUCT DISPARAGEMENT, WHICH WOULD BE COVERED, DID NOT TRIGGER THE DUTY TO DEFEND (FIRST DEPT).

The First Department upheld the declaratory judgment finding that defendant insurer does not have a duty to defend based upon the exclusion of coverage for antitrust violations. Despite the allegations in the complaint which colored the action as one for product disparagement, which would be covered, the complaint alleged antitrust violations: The underlying lawsuit alleges, […]

SUIT SEEKING INDEMNIFICATION FOR A SETTLEMENT PAID TO DEFENDANT’S EMPLOYEE SHOULD NOT HAVE BEEN DISMISSED, RELEVANT LAW EXPLAINED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the suit by a general contractor (Aragon) and property lessee seeking indemnification for a settlement paid to defendant subcontractor’s (Port Richmond’s) injured employee (Brown), as well as the suit alleging the failure to procure insurance, should not have been dismissed. The court explained the relevant indemnification law: It […]

COMPLIANCE WITH NOTICE REQUIREMENTS OF REAL PROPERTY ACTIONS AND PROCEEDINGS LAW 1304 NOT DEMONSTRATED, BANK’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the bank’s motion for summary judgment should not have been granted because the papers did not demonstrate compliance with the notice provisions of Real Property Actions and Proceedings Law (RPAPL) 1304: …[T]he complaint should be dismissed as against defendant, without prejudice, because plaintiff failed to prove that it […]

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ALTHOUGH FOSTER CARE RECORDS ARE CONFIDENTIAL, A FOSTER CHILD IS ENTITLED TO HER OWN FOSTER CARE RECORDS WITHOUT THE REDACTION OF THE NAMES OF CASEWORKERS AND OTHER PROFESSIONALS (FIRST DEPT).

The First Department determined plaintiff mother was entitled to the infant plaintiff’s foster care records in connection with her claim that SCO Family Services negligently certified the individual defendant as a foster parent, and failed to properly supervise the foster home: Pursuant to Social Services Law § 372(1), SCO was required to maintain records while the […]

DESPITE MOTHER’S FAILURE TO COMPLY WITH SEVERAL DIRECTIONS BY THE COURT THAT SHE RETURN TO NEW YORK WITH THE CHILDREN, FATHER SHOULD NOT HAVE BEEN AWARDED CUSTODY IN THE ABSENCE OF A FULL HEARING (THIRD DEPT).

The Third Department, reversing Family Court, determined that the court erred in awarding custody to the father without an evidentiary hearing. Mother had repeatedly promised to return with the children from New Mexico but did not. Although Family Court was justifiably irked by the mother’s behavior, a custody hearing was still required: We do … […]

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DISTINCTION BETWEEN LEGAL INSUFFICIENCY AND WEIGHT OF THE EVIDENCE EXPLAINED, CRIMINALLY NEGLIGENT HOMICIDE IS NOT A LESSER INCLUDED OFFENSE WITHIN DEPRAVED INDIFFERENCE MURDER (THIRD DEPT).

The Third Department, affirming defendant’s depraved indifference murder conviction, noted the difference between a “legal sufficiency” analysis and a “weight of the evidence” analysis on appeal, and reiterated that criminally negligent homicide is not a lesser included offense within depraved indifference murder. Here the two-year old victim was subjected to severed physical abuse over a […]

PROSECUTOR’S CLOSING ARGUMENT RENDERED THE ROBBERY INDICTMENT COUNT DUPLICITOUS BY SUGGESTING THE COUNT COULD APPLY TO THE THEFT OF A BICYCLE WHICH WAS NOT CHARGED IN THAT COUNT (FIRST DEPT).

The First Department determined the prosecutor’s closing argument rendered an indictment count duplicitous by suggesting the robbery count could apply to either a cell phone or a bicycle (different victims). The indictment count charged robbery of the cell phone: The indictment, as amplified by the bill of particulars, charged defendant in the first count with […]

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FORMER COMMISSIONER OF ENVIRONMENTAL CONSERVATION DID NOT HAVE THE AUTHORITY TO REVISIT A PRIOR FINDING THAT A ROAD WITHIN THE ADIRONDACK PARK HAD NOT BEEN ABANDONED AND THEREFORE COULD BE USED BY SNOWMOBILERS (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Mulvey, annulled the former Commissioner of Environmental Conservation’s determination that a road within the Adirondack Park had been abandoned and therefore could not be used by snowmobilers. The determination reversed an earlier determination that the road had not been abandoned. The second determination was made pursuant to […]

ALTHOUGH THE CHILD SUPPORT INCOME FOR TWO CHILDREN IN COLLEGE WAS COUNTED AS PART OF THE HOUSEHOLD INCOME, THE TWO COLLEGE STUDENTS WERE PROPERLY NOT COUNTED FOR FOOD STAMP ELIGIBILITY, THE DENIAL OF FOOD STAMPS WAS PROPER (SECOND DEPT).

The Second Department determined the Commissioner of the NYS Office of Temporary and Disability Assistance properly interpreted the food stamp regulations. Petitioner’s application to continue her Supplemental Nutritional Assistance Program (SNAP) (food stamp) benefits was denied. Petitioner had five children, two in college. The two college students were not counted as part of the household […]

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