The Fourth Department reversed defendant’s conviction and ordered a new trial because defendant was not included in the Sandoval conference (re: whether defendant could be cross-examined about prior convictions): Defendant appeals from a judgment convicting him after a jury trial of, inter alia, burglary in the second degree … . As the People correctly concede, reversal is […]
The Fourth Department determined the duty to keep a state park safe is a proprietary function, not a governmental function. The governmental immunity doctrine does not apply. Therefore the claimant’s motion for summary judgment based upon his being bitten by a rabid fox in a park was properly granted: “The relevant inquiry in determining whether a […]
The Fourth Department, over a two-justice partial dissent, in a complex decision covering many issues not summarized here, determined that the language of the contracts and agreements re: the construction of new schools precluded the City of Buffalo Joint Schools Construction Board (Board) from learning the program manager’s (LPC’s) construction and administrative costs. The Board entered construction agreements […]
The Fourth Department, over an extensive two-justice dissent which addresses many substantive procedural issues not summarized here, determined plaintiff’s attempt to file and serve an amended complaint was untimely and the relation-back doctrine did not apply: Pursuant to CPLR 203 (f), “[a] claim asserted in an amended pleading is deemed to have been interposed at […]
The Third Department determined claimant was properly denied unemployment insurance benefits for the first seven weeks of a strike because an alternative work site was available: Pursuant to Labor Law § 592 (1), unemployment insurance benefits are suspended during the first consecutive seven weeks of a strike or industrial controversy beginning the day after a […]
The Third Department determined, under law at the time of the offense, defendant should not have been sentenced to additional incarceration for a violation of his conditional discharge in this driving while intoxicated case: After he served his jail term, a declaration of delinquency was filed in 2015, claiming that he violated his conditional discharge by […]
The Second Department, reversing Supreme Court, determined that defendant did not demonstrate a lack of constructive notice of the condition alleged to have caused plaintiff’s parking lot slip and fall. The evidence described only general inspection practices and did not indicate when the area of the fall was last inspected: … [T]he defendant failed to […]
The Second Department, over a dissent, determined defendants were entitled to summary judgment in this parking lot slip and fall case. Defendants demonstrated they did not have notice that water pooled in the parking lot in the area where plaintiff allegedly fell on ice. The dissent argued that defendants did not demonstrate the formation of ice […]
The Second Department, in a comprehensive decision dealing with several related issues not summarized here, determined a snow removal contractor (Cristi) and parking lot manager (Five Star) demonstrated their contracts with Port Authority did not give rise to liability for a slip and fall in the parking lot: A contractual obligation, standing alone, does not […]
The Second Department noted that Supreme Court properly refused to consider a new theory raised for the first time in opposition to a summary judgment motion. Plaintiff alleged she slipped on a piece of trash on stairs. In opposition to defendants’ motion for summary judgment code violations and the absence of a handrail were alleged: […]
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