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ONCE AN ALCOHOL AND SUBSTANCE ABUSE EVALUATION WAS ORDERED THE CASE SHOULD HAVE BEEN TRANSFERRED TO THE DRUG TREATMENT COURT FOR THE JUDICIAL DIVERSION HEARING, CONVICTION REVERSED (THIRD DEPT).

The Third Department, reversing defendant’s conviction, determined that the judicial diversion hearing should have been presided over by a judge in the Drug Treatment Court, not County Court: … County Court was not designated by the Administrative Judge for the Third Judicial District to preside over the drug treatment court in Sullivan County. … Accordingly, […]

DEFENDANT SHOT ANOTHER HUNTER AND WAS CHARGED WITH AND CONVICTED OF (RECKLESS) ASSAULT SECOND, DEFENSE REQUEST FOR A JURY INSTRUCTION ON (NEGLIGENT) ASSAULT THIRD SHOULD HAVE BEEN GRANTED, NEW TRIAL ORDERED (THIRD DEPT).

The Third Department, reversing defendant’s conviction, determined defendant’s request for a jury instruction on a lesser included offense should have been granted. Defendant shot another hunter and was charged with assault second. Defendant requested a jury instruction on assault third which was denied: Defendant argued that the jury could reasonably find from the trial proof […]

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ACTION BY YARD WASTE BUSINESS WAS A STRATEGIC LAWSUIT AGAINST PUBLIC PARTICIPATION (SLAPP), DEFAMATION AND RELATED CLAIMS AGAINST NEIGHBOR BASED ON STATEMENTS MADE BY THE NEIGHBOR ABOUT THE OPERATION OF THE YARD WASTE BUSINESS SHOULD HAVE BEEN DISMISSED (THIRD DEPT).

The Third Department, modifying Supreme Court, determined that defendants demonstrated the suit against them was a strategic lawsuit against public participation (SLAPP). Therefore plaintiff’s motion to dismiss the defendants’ anti-SLAPP counterclaim was properly denied. Plaintiff operated a yard-waste-related business. Defendants lived on neighboring properties and had made statements about odors and contamination related to the yard […]

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BANK DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE PROVISIONS OF THE REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL), BANK’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION PROPERLY DENIED (SECOND DEPT).

The Second Department determined plaintiff bank’s motion for summary judgment in this foreclosure action was properly denied. Although the bank demonstrating standing to bring the action, it did not demonstrate compliance with the notice provisions of Real Property Actions and Proceedings Law (RPAPL) 1304 with admissible evidence: … [S]ince the defendant raised the issue of […]

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ALTHOUGH THE BANK’S MOTION FOR SUMMARY JUDGMENT WAS NOT OPPOSED, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED, THE BANK DID NOT DEMONSTRATE STANDING WITH EVIDENCE ADMISSIBLE UNDER THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank’s unopposed motion for summary judgment in this foreclosure action should not have been granted. Defendants raised the issue of plaintiff’s standing in their answer to the complaint. The bank’s proof of standing was not admissible under the business records exception to the hearsay rule: “A plaintiff […]

PATERNITY PETITION SHOULD HAVE BEEN DISMISSED ON EQUITABLE ESTOPPEL GROUNDS IN THIS ARTIFICIAL INSEMINATION CASE (SECOND DEPT).

The Second Department, reversing Family Court, determined the paternity petition should have been dismissed on equitable estoppel grounds. Petitioner provided semen for the artificial insemination of mother, who is married to her same sex partner. The artificial insemination was not done by a doctor in accordance with Domestic Relations Law 73, so the statutory presumption […]

NO CAUSAL CONNECTION BETWEEN FATHER’S MENTAL ILLNESS AND ACTUAL OR POTENTIAL HARM TO THE CHILD, NEGLECT FINDING VACATED (SECOND DEPT).

The Second Department, reversing Family Court, determined that a causal connection between father’s mental illness and actual or potential harm to the child (Kyle) had not been demonstrated. The neglect finding was vacated: While parental neglect may be based on mental illness, proof of a parent’s mental illness alone will not support a finding of […]

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DEFENDANT DEMONSTRATED HE WOULD NOT HAVE PLED GUILTY HAD HIS COUNSEL TOLD HIM DEPORTATION WAS MANDATORY, CONVICTION REVERSED (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined defendant demonstrated a reasonable probability that he would not have pled guilty had he been told by his attorney that deportation was mandatory: … [W]e agree with the defendant’s contention that the legal representation he received at the plea proceeding was deficient inasmuch as the plea minutes show […]

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PLAINTIFF’S SILENCE COUPLED WITH GOING FORWARD TO ENTER THE LEASE CONSTITUTED ACCEPTANCE OF THE REAL ESTATE BROKER’S COUNTEROFFER FOR THE BROKERAGE FEE (SECOND DEPT).

The First Department determined plaintiff’s silence after defendant real estate broker’s counteroffer for the brokerage fee, coupled with plaintiff’s going ahead to enter the lease procured by the broker, constituted acceptance of the counteroffer: …[T]he plaintiff established, prima facie, its entitlement to a judgment declaring that the brokerage commission due was five percent of the rent for the […]

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ALLEGATIONS IN COMPLAINT AND AFFIDAVIT SUBMITTED IN RESPONSE TO A MOTION TO DISMISS MUST BE TREATED AS TRUE, PLAINTIFF RAISED A QUESTION OF FACT WHETHER RELEASE PROCURED BY FRAUD (SECOND DEPT).

The Second Department determined defendants’ motion to dismiss the complaint in this personal injury action, based upon a release signed by the plaintiff, was properly denied. Plaintiff submitted an affidavit which, together with the complaint, raised the issue whether the release was procured by fraud: “In resolving a motion for dismissal pursuant to CPLR 3211(a)(5), […]

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