The Third Department, over a two-justice partial dissent, determined mother was properly stripped of joint legal custody: The evidence reveals the parties’ inability to communicate effectively regarding the child. Notwithstanding their numerous discussions, occurring both in court and out of court, the mother continued to undermine the father and to act contrary to his […]
The Third Department determined a prior burglary should not have been allowed as Molineux and Sandoval evidence in this robbery prosecution. The error was deemed harmless however: “The Molineux rule requires that evidence of a defendant’s prior bad acts or crimes be excluded unless it is probative of a material issue other than criminal propensity and […]
The First Department, in a full-fledged opinion by Justice Gesmer, determined defendant’s motion to vacate his conviction (by guilty plea) should not have been denied without a hearing. The pro se papers were deemed sufficient to raise the issues of ineffective assistance (failure to accurately inform defendant of the deportation consequences of the plea) and prejudice […]
The Third Department explained the concept of a design-build “turnkey” project, noting that the property owner is generally not a third-party beneficiary of the contracts entered into by the entity in charge of the design-build “turnkey” project (here RBG): It is undisputed that neither plaintiff entered into a contract with RZA nor RDI. Rather, RBG entered into […]
The Third Department determined Supreme Court should not have dismissed causes of action for failure to name necessary parties, but rather should have ordered the parties joined: Supreme Court erred, however, by determining that petitioners’ failure to name Negron, Zell, Lowe, Robertson and Burkert as necessary parties required dismissal of the first three causes […]
The Second Department, reversing Supreme Court, determined that plaintiff’s separate cause of action for punitive damages should have been dismissed. However, the demand for punitive damages in the ad damnum clause was proper. Plaintiff was a passenger in the car driven by defendant, who was drunk and lost control of the car: The plaintiff […]
The Second Department, reversing Supreme Court, determined questions of fact raised by the defendant housing authority’s evidence precluded summary judgment. Plaintiff was injured when a custodian pushing a cart collided with plaintiff’s scooter as plaintiff backed out of an elevator. The custodian’s claim that he could see clearly in front of him raised a credibility issue: […]
The Second Department, reversing Supreme Court, determined the benches near the field where plaintiff was playing football were open and obvious and plaintiff had assumed the risk of tripping over them: Under the doctrine of primary assumption of risk, “[i]f the risks of [a sporting] activity are fully comprehended or perfectly obvious to [a […]
The Second Department, reversing Supreme Court, determined defendant-cemetery had demonstrated it did not have notice of the depression or hole plaintiff stepped in. The area was covered with grass and appeared to be level: As alleged by the plaintiff, she was visiting the graves of her family members and was walking behind her father […]
The Second Department, reversing Supreme Court, determined plaintiffs’ summary judgment motion in this traffic accident case should have been granted. Defendant bus driver was aware of an upcoming sharp curve and was aware the road was slippery due to rain. The bus crossed into the on-coming lane, striking plaintiffs’ vehicle. There was no question of fact […]
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