You are here: / CurlyHost

Entries by CurlyHost

, , ,

SEEKING ATTORNEY’S FEES FOR THE CLASS ACTION PURSUANT TO THE FEDERAL FAIR LABOR STANDARDS ACT (FLSA) CONSTITUTED SEEKING INDEMNIFICATION WHICH IS PROHIBITED BY THE ACT, THE BREACH OF CONTRACT ACTION IS NOT DUPLICATIVE OF THE ACCOUNTANT MALPRACTICE ACTION (FOURTH DEPT).

The Fourth Department, modifying Supreme Court, determined the request for attorney’s fees in this accountant malpractice action constituted a request for indemnification which was prohibited by the Federal Fair Labor Standards Act (FLSA). Plaintiffs alleged they hired defendant-accountants to make sure plaintiffs were in compliance with overtime compensation and wage notice requirements of the FLSA. […]

,

COMPETENCE ASSESSMENT WRITTEN BY DEFENDANT CONCERNING PLAINTIFF, A DOCTOR WHOSE PATIENT DIED DURING SURGERY, WAS PROTECTED BY THE COMMON INTEREST QUALIFIED PRIVILEGE AND WAS AN EXPRESSION OF PURE OPINION (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined a report written by defendant concerning plaintiff-doctor’s competence was protected by the common interest qualified privilege and was the expression of pure opinion. The competence assessment was done after one of plaintiff’s patients died during surgery: ​ Plaintiff, a doctor employed by defendant Kaleida Health (Kaleida), performed a […]

,

INSUFFICIENT EVIDENCE TO SUPPORT CONVICTION FOR ENDANGERING THE WELFARE OF A CHILD, MOTHER TRANSPORTED DEAD BODY IN A CAR IN WHICH FOUR YEAR OLD DAUGHTER WAS RIDING, TWO JUSTICE DISSENT (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, determined the evidence was not sufficient to support endangering the welfare of a child. The child’s mother was convicted of killing the victim and transporting the victim’s body in a car when her four-year-old daughter was in the car: ​ We agree with defendant, however, that her conviction […]

SENTENCING COURT IS OBLIGATED TO CONSIDER YOUTHFUL OFFENDER STATUS, DESPITE THE ABSENCE OF ANY MENTION OF IT IN THE PLEA OFFER (FOURTH DEPT).

The Fourth Department, vacating defendant’s sentence, noted that the failure to mention youthful offender treatment in a plea offer does not constrain the court from considering it: ​ There is no dispute that defendant was eligible … for youthful offender treatment (see CPL 720.10). Nevertheless, based on comments that the court made in denying defendant’s request […]

DEFENDANT’S MOTION TO DISMISS THE INDICTMENT ON SPEEDY TRIAL GROUNDS SHOULD NOT HAVE BEEN GRANTED, THE UNAVAILABILITY OF A WITNESS AND THE RELATED ADJOURNMENT SHOULD NOT HAVE BEEN CHARGED TO THE PEOPLE (FOURTH DEPT).

The Fourth Department, reversing County Court, determined defendant’s motion to dismiss the indictment on speedy trial grounds should not have been granted. The delay attributed to the unavailability of a witness and the related adjournment should not have been charged to the People: ​ We agree with the People that a witness’s one-day unavailability while […]

SECOND FELONY OFFENDER STATUS CANNOT BE BASED UPON A PRIOR FEDERAL DRUG CONSPIRACY CONVICTION (FOURTH DEPT).

The Fourth Department determined defendant should not have been sentenced as a second felony offender based upon a prior federal drug conspiracy conviction: ​ “It is well settled that, under New York’s strict equivalency standard for convictions rendered in other jurisdictions, a federal conviction for conspiracy to commit a drug crime may not serve as […]

, ,

PLAINTIFF CORPORATION’S FAILURE TO MAKE A REASONABLE EFFORT TO PRODUCE A FORMER EMPLOYEE FOR DEPOSITION BY DEFENDANT WARRANTED PRECLUDING PLAINTIFF FROM PRESENTING TESTIMONY BY THE FORMER EMPLOYEE PURSUANT TO CPLR 3126, HOWEVER PRECLUSION OF SECONDARY AND HEARSAY EVIDENCE RELATING TO THE FORMER EMPLOYEE, WHICH WOULD PRECLUDE PLAINTIFF FROM ASSERTING ITS CLAIM, WAS AN ABUSE OF DISCRETION (FOURTH DEPT).

The Fourth Department determined Supreme Court properly found that plaintiff corporation did not make sufficient efforts to produce a former employer to be deposed by defendant in this breach of contract action, and therefore properly precluded plaintiff from presenting the former employee’s testimony. However, the Fourth Department held that Supreme Court abused its discretion when […]

,

OHIO GUN DEALER WHO SOLD GUN USED TO SHOOT PLAINTIFF IN NEW YORK DID NOT HAVE THE REQUISITE MINIMUM CONTACTS WITH NEW YORK, EXERCISING JURISDICTION OVER THE OHIO GUN DEALER, THEREFORE, WOULD VIOLATE DUE PROCESS (FOURTH DEPT).

The Fourth Department, in a full-fledged opinion by Justice Peradotto, reversing Supreme Court, determined New York courts could not exercise jurisdiction over an Ohio gun dealer, Brown, who, in Ohio, sold a handgun to an illegal gun trafficker from New York (Bostic). The handgun was ultimately used in New York to shoot the plaintiff. The […]

BACK AND NECK INJURIES PROPERLY RULED AN OCCUPATIONAL DISEASE RESULTING FROM REPETITIVE LIFTING AND CARRYING (THIRD DEPT).

The Third Department determined claimant demonstrated his back and neck injuries constituted an occupational disease related to his lifting and mix heavy containers of compound and applying the compound to walls and ceilings: ​ “In order for an occupational disease to be established, the claimant must establish a recognizable link between his or her condition […]

, ,

INSUFFICIENT SHOWING THAT SEX OFFENDER’S VIOLATION OF NON-SEXUAL TERMS OF HIS STRICT AND INTENSIVE SUPERVISION AND TREATMENT (SIST) JUSTIFIED A FINDING HE IS UNABLE TO CONTROL SEXUAL MISCONDUCT, COMMITMENT TO LOCKED FACILITY REVERSED (FOURTH DEPT).

The Fourth Department, in a full-fledged opinion by Justice DeMoyer, reversing County Court, determined that there was an insufficient showing that respondent sex offender’s non-sexual violations of the terms of his strict and intensive supervision and treatment (SIST) (alcohol abuse) justified a finding he has an inability to control sexual misconduct: ​ … [A] Mental Hygiene Law § […]

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy