The Third Department, in a highly technical decision applying the legislature’s mathematical analyses and formulas for the determination of Medicaid reimbursement rates for two nursing homes, determined Supreme Court had erred in annulling the Department of Health’s reduction in reimbursement: …[W]e agree that the Department was authorized by these laws to reduce both the initial […]
The Third Department determined Family Court did not adequately consider mother’s request for unsupervised visitation with her children and improperly delegated the court’s authority to determine visitation to the father: …Both the children and the noncustodial parent have a right to meaningful visitation … . “[I]n providing for visitation that will be meaningful, the frequency, […]
The Third Department upheld Family Court’s finding father’s incarceration justified a modification of custody and the grant of sole custody to the mother: Initially, we note the absence of anything in the record to indicate that, but for the father’s incarceration, joint custody would not have continued to be appropriate. Nonetheless, the father’s incarceration presented […]
The Third Department determined (1) the defendant doctor in a medical malpractice action can be deposed as an expert (by the plaintiff) with respect to his treatment (the doctor was asked whether the treatment as described in the records deviated from the standard of care); (2) the defendant doctor must answer the question whether he […]
The Third Department determined that the petitioners, manufacturers of electronically-operated partitions used in school buildings, did not have standing to bring an action compelling the NYC Department of Education to comply with the Education Law (Education Law 409-f) and regulations with respect to the maintenance of the partitions. The petitioners argued that they are subject […]
The Third Department affirmed defendant’s convictions, which stemmed from the killing of a horse. The court determined the horse was a “companion animal” within the meaning of the Agricultural and Markets Law and, therefore, the elements of aggravated cruelty to animals were proven: …[D]efendant claims that the charge of aggravated cruelty to animals was jurisdictionally […]
The Third Department determined that the Confrontation Clause was not violated because a party [Lafond] who had signed the report identifying the controlled substance defendant was accused of selling did not testify. The court determined Lafond had nothing to do with the chemical tests and analysis. The party who actually did the chemical tests and […]
The Third Department ordered a new trial was because one of the juror’s, juror No. 4 should have been dismissed after the trial court determined that the juror was “grossly unqualified,” and because deliberations continued while juror No. 4 was absent from the jury room for about an hour: “If at any time after the […]
The Third Department determined defendant was entitled to a restitution hearing, noting that the record did not include proof sufficient to substantiate the restitution amount. The defendant’s stating a dollar amount, or a conclusory admission of the amount in a plea agreement, is not enough to meet the court’s and the People’s burden: A restitution […]
The Third Department, in a full-fledged opinion by Justice Spain, determined defendant was entitled to a hearing on his motion to vacate his conviction based on the allegation defense counsel gave defendant affirmative misinformation about the deportation consequences of his guilty plea: Defendant’s motion to vacate sufficiently raises a question as to whether trial counsel […]
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