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TRESPASS AND NUISANCE ACTIONS BASED UPON WATER RUNOFF FROM NEIGHBORING PROPERTY SHOULD NOT HAVE BEEN DISMISSED, CRITERIA EXPLAINED (THIRD DEPT).

The Third Department, reversing Supreme Court, determined plaintiffs’ trespass and nuisance actions based upon water run-off from neighboring property should not have been dismissed: It is well-settled that “[l]andowners making improvements to their land are not liable for damage caused by any resulting flow of surface water onto abutting property as long as the improvements […]

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THE NEGLIGENCE ACTION AGAINST THE AGENCY WHICH PLACED A BABY IN A FOSTER HOME WHERE THE BABY WAS INJURED BY THE TEENAGED BOYFRIEND OF THE FOSTER MOTHER’S DAUGHTER PROPERLY SURVIVED SUMMARY JUDGMENT (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Gesmer, over a two-justice dissenting opinion, determined the negligence action against the Jewish Child Care Association (JCCA) properly survived summary judgment. The JCCA placed a 29-week-old child with a foster mother (Pineda). The child was left in the care of the teenaged boyfriend of Pineda’s daughter and suffered […]

BROKER NOT LIABLE FOR FAILURE TO PROCURE INSURANCE TO COVER INJURY TO CONSTRUCTION WORKERS, BROKER HAD NOTIFIED THE PROPERTY OWNER OF THE GAP IN COVERAGE, $6,000,000 VERDICT IN FAVOR OF PLAINTIFF CONSTRUCTION WORKER NOT COVERED (THIRD DEPT).

The Third Department determined the action against the insurance broker, alleging the broker failed to procure the necessary insurance, was properly dismissed. Plaintiff was injured when he fell off a ladder and obtained a more than $6,000,000 verdict against the property owner. The property owner’s insurance included an exclusion of coverage for construction workers. The broker […]

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FACT THAT FATHER’S SISTER WORKED FOR ST LAWRENCE COUNTY DSS (SLCDSS) DID NOT CREATE A CONFLICT OF INTEREST, SLCDSS CAN PROSECUTE THE NEGLECT PETITION (THIRD DEPT).

The Third Department determined the fact that father’s sister was a supervisor in St. Lawrence County Department of Social Services (SLCDSS) did not present a conflict of interest such that SLCDSS could not prosecute a neglect petition. Family Court had transferred the matter to the Jefferson County Department of Social Services (JCDSS): ​ In SLCDSS’s papers […]

MOTHER’S PETITION TO REGAIN CUSTODY FROM GRANDMOTHER SHOULD NOT HAVE BEEN DISMISSED FOR FAILURE TO DEMONSTRATE A CHANGE IN CIRCUMSTANCES BECAUSE THE AWARD OF CUSTODY TO GRANDMOTHER WAS BY CONSENT, GRANDMOTHER DEMONSTRATED EXTRAORDINARY CIRCUMSTANCES JUSTIFYING THE AWARD OF CUSTODY TO HER, MATTER REMITTED FOR HEARING TO DETERMINE BEST INTERESTS OF THE CHILD (THIRD DEPT).

The Third Department determined grandmother had met her burden showing extraordinary circumstances warranting the award of custody to her. The matter was remitted for a determination whether the grandmother’s custody was in the best interests of the child. The court noted that Family Court should not have dismissed mother’s petition for custody for failure to […]

RECORD DID NOT SUPPORT REMOVING CHILD FROM MOTHER’S CUSTODY, FAMILY COURT REVERSED (THIRD DEPT).

The Third Department, reversing Family Court, over a two-justice dissent, determined that the evidence did not support removing the child from the mother’s custody: ​ Although a prolonged separation between a parent and child may support a finding of extraordinary circumstances… , here, the limited record does not warrant a finding of extraordinary circumstances on […]

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DEFENDANT’S CONVICTION SUPPORTED BY THE WEIGHT OF THE EVIDENCE, DETAILED DISCUSSION OF THE WEIGHT OF THE EVIDENCE ANALYSIS, DISSENT DISAGREED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Kahn, over a two-justice dissenting opinion, determined that defendant’s conviction in this murder case was supported by the weight of the evidence. The dissent argued that defendant’s videotaped statement supported the justification defense and no other evidence presented by the People refuted it. The opinion includes […]

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GRAND JURY EVIDENCE OF SERIOUS PHYSICAL INJURY PRESENTED THROUGH THE VICTIM’S TESTIMONY WAS SUFFICIENT, PROSECUTORIAL MISCONDUCT DURING THE GRAND JURY PROCEEDINGS WARRANTED DISMISSAL OF THE INDICTMENT (FOURTH DEPT).

The Fourth Department determined the evidence of serious physical injury, an element of the gang assault charge, was supported by sufficient evidence presented to the grand jury. However, prosecutorial misconduct during the grand jury proceedings warranted dismissal of the indictment (the People may represent however): ​ We agree with the People that the evidence before […]

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DISCOVERY OF THE COMPLETE DATABASE SHOWING THE DISTRIBUTION OF THE TYPE OF CLOTHES WHICH CAUGHT FIRE WAS APPROPRIATE, MOTION TO AMEND ANSWER PRECLUDED BY DISINGENUOUS BEHAVIOR WHICH PREJUDICED CODEFENDANTS (THIRD DEPT).

The Third Department determined defendant Enerco was entitled to discovery of information demonstrating the retail distribution of the type of clothes distributed by defendant Star of India which had caught fire from a heater manufactured or distributed by defendant Enerco. The court held that Enerco did not have to rely on a printout created by Star of India […]

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DEFENDANT DID NOT PROVE IT HAD A PRESCRIPTIVE EASEMENT ALLOWING EFFLUENT AND STORM WATER TO BE DISCHARGED ONTO PLAINTIFFS’ PROPERTY, ON APPEAL PLAINTIFFS AWARDED JUDGMENT ON THEIR TRESPASS ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant Garden Homes did not demonstrate it had acquired a prescriptive easement over plaintiffs’ (the Patels’) land such that effluent and storm water could be discharged onto plaintiffs’ property. The court further found plaintiffs’ trespass action was proven and sent the matter back for trial on damages: ​ […]

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