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THE STATUTE OF LIMITATIONS FOR THIS SLIP AND FALL CASE WAS SUSPENDED DURING THE COVID TOLLS, RENDERING THE ACTION TIMELY (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court, determined the slip and fall action was timely brought because the running of the statute of limitations was suspended during the COVID tolls: On March 20, 2020, then-Governor Andrew Cuomo issued Executive Order (A. Cuomo) No. 202.8, which tolled “any specific time limit for the commencement, filing, or service […]

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THE POLICE WERE AWARE THAT NO ONE ELSE WAS IN THE RESIDENCE AT THE TIME DEFENDANT LEFT THE RESIDENCE AND WAS ARRESTED; THERE WERE NO EXIGENT CIRCUMSTANCES JUSTIFYING THE WARRANTLESS SEARCH OF THE HOUSE AFTER DEFENDANT’S ARREST; THE WEAPONS SEIZED SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT

The Fourth Department, reversing County Court, determined defendant’s motion to suppress the weapons seized when the police did a “protective sweep” of defendant’s residence should have been granted. Defendant’s wife and daughter had left the residence and told the police, who were outside the residence, only the defendant was inside. Defendant eventually left the residence […]

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SMI, A SOLID WASTE TREATMENT FACILITY, RAISED A SEQRA CHALLENGE TO A LOCAL LAW ALLOWING THE CONSTRUCTION OF A SOLID WASTE TREATMENT FACILITY IN THE TOWN OF SENECA FALLS; ALTHOUGH SMI ALLEGED THE NEW FACILITY WOULD CAUSE IT ECONOMIC LOSS, SMI DID NOT ALLEGE IT WOULD SUFFER ENVIRONMENTAL INJURY; THEREFORE SMI DID NOT HAVE STANDING TO CHALLENGE THE LOCAL LAW (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, over a two-justice dissent, determined SMI, the owner of a solid waste management facility, did not have standing to challenge, pursuant to the State Environmental Quality Review Act (SEQRA), a local law allowing the construction of a solid waste management facility in the Town of Seneca Falls. SMI’s claim […]

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THE MUNICIPAL LAW PROVISION WHICH REQUIRES JUNK YARDS TO BE LICENSED DOES NOT APPLY IN PLAINTIFF TOWN WHERE DEFENDANT OPERATES HER JUNK YARD; A LOCAL ZONING ORDINANCE, WHICH DOES NOT REQUIRE LICENSURE, IS THE CONTROLLING LAW (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the Municipal Law provision which requires junk yards to be licensed does not apply to defendant because the local zoning ordinance is the controlling law: … [T]he parties dispute whether General Municipal Law § 136 applies to junkyards located within plaintiff [town]. That statute provides that it “shall […]

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THE GRAND JURY WAS PROPERLY INSTRUCTED ON THE DEFINITION OF “IMPAIRED” IN THE CONTEXT OF VEHICLE AND TRAFFIC LAW 1192 (4-A) (FELONY AGGRAVATED DRIVING WHILE INTOXICATED); THE FOURTH DEPARTMENT DISAGREED WITH THE DEFINITION OF “IMPAIRED” ADOPTED BY THE THIRD DEPARTMENT (FOURTH DEPT).

The Fourth Department, reversing County Court’s dismissal of the felony aggravated driving while intoxicated count, in a full-fledged opinion by Justice Curran, determined the grand jury was properly instructed on the definition of “impaired.” The Fourth Department noted its disagreement with the Third Department on this issue: … [T]he People correctly instructed the grand jury […]

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A HANDGUN USED AS BLUDGEON IS A “DANGEROUS INSTRUMENT” WHICH WILL SUPPORT A BURGLARY FIRST DEGREE COUNT; COUNTY COURT SHOULD NOT HAVE REDUCED THE CHARGE TO BURGLARY SECOND (FOURTH DEPT).

The Fourth Department, reversing County Court and reinstating the reduced count, determined the handgun with which the victim was allegedly struck was a “dangerous instrument” despite the fact it had not been fired. County Court had reduced the charge from Burglary first to Burglary second on the ground the handgun had not been shown to […]

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THE CHOICE OF FORUM CLAUSE (ARIZONA) IN THE CONTRACT IS ENFORCEABLE AND IS NOT AFFECTED BY AN ARGUMENT QUESTIONING THE VALIDITY OF A CHOICE OF LAW CLAUSE; THE FACT THAT THE NEW YORK PLAINTIFF WILL HAVE TO TRAVEL TO ARIZONA DOES NOT AFFECT THE ENFORCEABILITY OF THE CHOICE OF FORUM CLAUSE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant’s motion to dismiss the New York complaint based upon the choice of forum clause (Arizona) in the contract should have been granted. Plaintiff argued the contract was illegal under New York law. But a choice of forum clause is independent from a choice of law clause: The […]

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ON THE PEOPLE’S APPEAL, THE TRIAL COURT’S VACATION OF THE JUDGMENT OF CONVICTION BASED ON NEW EVIDENCE WAS REVERSED; THE NEW EVIDENCE INDICATED THAT, ALTHOUGH DEFENDANT WAS NOT THE SHOOTER, DEFENDANT WAS AN ACCOMPLICE TO THE SHOOTER; AN INTERMEDIATE APPELLATE COURT CAN ONLY CONSIDER THE TRIAL COURT’S GROUNDS FOR ITS RULINGS, OR RULINGS ADVERSE TO THE APPELLANT (FOURTH DEPT).

The Fourth Department, reversing Supreme Court and denying the motion to vacate the criminal possession of a weapon conviction, determined new evidence which indicated defendant was not the shooter but had provided the machine gun to the shooter (Scott)  would not have resulted in a more favorable verdict. Defendant would have been convicted as an […]

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THE DENIAL OF DEFENDANT’S MOTION TO SEVER THE CHARGES RELATING TO TWO SEPARATE MURDERS, COMMITTED NEARLY TWO YEARS APART, WAS NOT AN ABUSE OF DISCRETION; DEFENDANT DID NOT DEMONSTRATE THE JURY WOULD HAVE HAD DIFFICULTY CONSIDERING SEPARATELY THE PROOF FOR EACH OFFENSE (CT APP).

The Court of Appeals, affirming defendant’s murder convictions, in a full-fledged opinion by Judge Halligan, over two comprehensive dissenting opinions, determined the denial of defendant’s motion to sever the charges relating to two separate murders, committed nearly two years apart, was not error: The first victim was the defendant’s roommate, who was found dead in […]

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DEFENDANT’S CROSSING THE FOG LINE ON THE RIGHT SIDE OF THE HIGHWAY THREE TIMES IN SECONDS CONSTITUTED PROBABLE CAUSE FOR THE TRAFFIC STOP (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Rivera, determined there was probable cause for the traffic stop which resulted in a DWI conviction. Defendant’s car crossed the fog line on the right side of the roadway three times within seconds: When a driver swerves over the fog line repeatedly, in quick succession, […]

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