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THE PEOPLE’S “READY FOR TRIAL” STATEMENT, MADE BEFORE THE INDICTMENT WAS FILED, WAS CONCEDEDLY ILLUSORY; DEFENDANT’S MOTION TO DISMISS THE INDICTMENT ON SPEEDY-TRIAL GROUNDS SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, noted that the People conceded the statement of readiness for trial was illusory. Therefore defendant’s motion to dismiss the indictment on speedy-trial grounds should have been granted: “Ready for trial” for purposes of CPL 30.30 means “present readiness, not a prediction or expectation of future readiness” … . “A […]

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PLAINTIFF’S MOTION TO AMEND THE NOTICE OF CLAIM TO ADD ALLEGATIONS WHICH MERELY AMPLIFIED THE ALLEGATIONS IN THE ORIGINAL NOTICE SHOULD HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, determined plaintiff’s motion to amend the notice of claim in this traffic accident case should have been granted to the extent the amendment merely amplified the allegations in the original notice. By contrast, the attempts to amend the notice by adding new theories of liability were properly denied. […]

THE FOLD-DOWN LADDER WHICH WAS PERMANENTLY ATTACHED TO THE CEILING WAS THE FUNCTIONAL EQUIVALENT OF A LADDER FOR GAINING ACCESS TO THE ATTIC; PLAINTIFF FELL WHEN THE LADDER DETACHED FROM THE CEILING; PLAINTIFF IS ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) AND 241(6) CAUSES OF ACTION (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on his Labor :Law 240(1) and 241(6) causes of action. Plaintiff needed to access the attic using a fold-down ladder which was permanently attached to the ceiling. The ladder came loose from the ceiling and plaintiff fell to the floor: ​… [T]he […]

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HERE AN OTHERWISE UNTIMELY COUNTERCLAIM WAS RENDERED TIMELY PURSUANT TO CPLR 203(D) TO THE EXTENT IT SOUGHT EQUITABLE RECOUPMENT, AS OPPOSED TO AFFIRMATIVE RELIEF (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the counterclaim alleging professional malpractice was timely pursuant to CPLR 203(d) to the extent the counterclaim sought equitable recoupment, as opposed to affirmative relief: Even crediting the court’s determination that this claim accrued on February 4, 2019, rendering time-barred the counterclaim alleging professional malpractice asserted on February […]

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PLAINTIFFS RAISED QUESTIONS OF FACT WHETHER THE CONTINUOUS REPRESENTATION DOCTRINE APPLIED TO RENDER THE LEGAL MALPRACTICE CAUSES OF ACTION TIMELY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined there were questions of fact whether the continuous representation doctrine applied to render legal malpractice causes of action timely: The statute of limitations for a cause of action alleging legal malpractice is three years (see CPLR 214[6]). “However, causes of action alleging legal malpractice which would otherwise be […]

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THE DENIAL OF DEFENDANT’S REQUEST FOR COUNSEL OF HIS CHOICE, ASSIGNED COUNSEL’S DISPARAGING REMARKS, AND ASSIGNED COUNSEL’S FAILURE TO INFORM DEFENDANT DEPORTATION WAS MANDATORY, AMOUNTED TO A DEPRIVATION OF DEFENDANT’S RIGHT TO COUNSEL; GUILTY PLEA WITHDRAWN AND VACATED (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant’s motion to withdraw and vacate his guilty plea should have been granted. Defendant did not receive effective assistance of counsel: The People concede that defendant’s right to counsel was violated by the court’s ruling improperly prohibiting defendant from retaining an unpaid attorney who worked at a public […]

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DEFENDANT’S 140-YEARS-TO-LIFE SENTENCE IN THIS PREDATORY-SEXUAL-ASSAULT-OF-A-CHILD PROSECUTION DEEMED UNDULY HARSH AND SEVERE; THE PEOPLE HAD TWICE OFFERED A 15-20-YEAR SENTENCE; SENTENCE REDUCED TO 20-TO-LIFE (THIRD DEPT).

The Third Department held that defendant’s 140 years-to-life sentence in this predatory-sexual-assault-of-a-child prosecution was unduly harsh and severe. The sentence was reduced to 20 years-to-life:​ We turn to defendant’s aggregate sentence of 140 years to life in prison. As a threshold matter, our determination that the sentences imposed on counts 2 and 15 must run […]

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PURSUANT TO THE TOWN CODE, THE PLANNING BOARD DID NOT HAVE THE POWER TO INTERPRET A LOCAL ZONING LAW TO APPROVE A DEVELOPMENT PROJECT, MATTER REMITTED (THIRD DEPT).

The Third Department, reversing Supreme Court, over a two-judge dissent, determined the planning board did not have the power to issue a special use permit and site plan approval for a commercial park: … [T]he jurisdiction of a zoning board of appeals is appellate in nature (see Town Law § 267-a [4]). Nevertheless, a town […]

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THE ZONING REGULATION WHICH REQUIRES PAYMENT TO AN “ARTS FUND” OF $100 PER SQUARE FOOT FOR CONVERSION OF “JOINT LIVING-WORK QUARTERS FOR ARTISTS” TO FULLY RESIDENTIAL USE IS AN UNCONSTITUTIONAL TAKING (FIRST DEPT).

The First Department, reversing Supreme Court, found unconstitutional a NYC Zoning Regulation (ZR) which required artists who wish to convert their “joint living-work quarters for artists (JLWQA)” to residential use to pay $100 per square foot to an “Arts Fund.” The fund did not have a sufficient connection with the government’s land-use interest: The ZR […]

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THERE WAS A QUESTION OF FACT WHETHER THE TIME-OF-THE-ESSENCE CLOSING DATE SET IN SELLER’S LETTER PROVIDED SUFFICIENT TIME FOR BUYER TO CLOSE; THEREFORE SELLER WAS NOT ENTITLED TO SUMMARY JUDGMENT REQUIRING SPECIFIC PERFORMANCE; CRITERIA EXPLAINED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined there was a question of fact whether the time-of-the-essence closing date set in a letter from seller’s counsel allowed sufficient time for the buyer to close. Therefore the seller was not entitled to summary judgment requiring specific performance based on the buyer’s failure to appear: “Where there is […]

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