The Second Department, reversing Family Court, determined the record supported a neglect finding based upon domestic abuse witnessed or overheard by the children: At the conclusion of the hearing, the Family Court credited the witnesses’ testimony, which the court found established that the father hit and choked the mother in the presence of two of […]
The Second Department determined that a review of plaintiff’s work at defendant’s home posted on Yelp was not actionable as libel per se. The review was an expression of opinion by a dissatisfied customer: After the plaintiff installed a custom home theater system in the defendant’s home, the defendant posted a review of the services […]
The Second Department, in a full-fledged opinion by Justice Roman, held Supreme Court did not err in excluding defendant from the SORA proceeding because of unruly behavior and proceeding with the hearing without a determination of defendant’s competency. Defendant’s competency had been called into question by defendant’s past behavior, his behavior at the SORA hearing, […]
The Second Department, reversing County Court, determined the upward departure from the presumptive risk level was not authorized. The facts were not discussed but the applicable law was clearly explained: Once the presumptive risk level has been established at a risk level hearing, the court is permitted to depart from it if “special circumstances” warrant […]
The Second Department, over a dissent, determined defendant’s motion to vacate his conviction on ineffective assistance grounds was properly denied because the issue could have been appealed. Defendant pled guilty to three counts charging robbery second. However the underlying factual allegations for two of the counts only supported robbery third. Defendant was sentenced to consecutive five […]
The Second Department, reversing Supreme Court, determined plaintiff’s motion to vacate a stipulation of discontinuance should not have been denied. At the time plaintiff signed the discontinuance pro se, his attorney (Mulhern) had notified all parties he was no longer representing plaintiff, but the proper procedure for withdrawing as counsel had not been followed. Therefore […]
The Second Department determined defendants’ hotel’s motion to dismiss based upon the lack of business ties to New York was properly granted. Plaintiff was injured in a shower in the hotel, which is located in Virginia. The defendants demonstrated they did not do business in New York. The fact that reservations could be made through […]
The First Department, in a full-fledged opinion by Justice Sweeney, determined plaintiff (Sprint) was not a “utility” within the meaning of the relevant statutes and therefore was required to pay both the Utility Tax and the Unincorporated Business Income Tax (UBT). If Sprint were deemed a utility, as opposed to a vendor of utility services, […]
The First Department determined the defendants’ motion to set aside the verdict in this slip and fall case should not have been granted. The First Department further held that photographs of the sinkhole where plaintiff fell (taken two weeks after the injury) and the contract specifications for repair of the sinkhole should not have been […]
The First Department determined the insurer’s responses to the insureds’ claims amounted to a denial of coverage. Therefore the insureds were not obligated to cooperate with the insurers or obtain the insurers’ consent to settle: Defendants’ [insurers’] unreasonable delay in dealing with plaintiffs’ claims under the insurance contracts, consistently stated position that the various regulatory investigations […]
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