The First Department reversed defendant’s conviction and dismissed the indictment after a weight of the evidence review. The court found too many inconsistencies in the evidence, especially with respect to the identification of the defendant as the attacker. The decision is a concise example of the kinds of proof problems which are considered significant under a […]
The First Department, in a full-fledged opinion by Justice Sweeny, reversed Supreme Court and granted the defendants’ motion for summary judgment dismissing the action. The complaint alleged that plaintiff’s husband’s suicide was the result of negligence on the part of the treating doctors, psychiatrists and other health professionals. The court noted that in most instances […]
The Third Department determined the American Cancer Society (ACS), as a licensee, had assumed sufficient control of the premises hired for an event hosted by the ACS to create a duty to maintain the premises in a safe condition. Plaintiff had tripped over a cable placed by an outfit hired by ACS to provide audio-visual services: […]
The Second Department determined a motion to renew was properly granted, in the interest of justice, even though the facts were known at the time of the original motion. The court also determined, under the facts, the motion to vacate a default judgment was properly granted on the ground of law office failure: A motion for […]
The Second Department determined that the offered “law office failure” excuse for failing to enter a default judgment within the one-year time limit was not sufficient: CPLR 3215(c), entitled “Default not entered within one year,” provides, in pertinent part, that “[i]f the plaintiff fails to take proceedings for the entry of judgment within one year after […]
The Second Department determined the sentencing court properly sentenced defendant as a youthful offender under one indictment and properly declined to sentence defendant as a youthful offender under a second indictment: The defendant contends that, because the sentencing court granted him youthful offender status with respect to Indictment No. 12-00529, it was required to do […]
The Second Department determined that the failure of defendant limited liability company to maintain its current address with the Secretary of State precluded defendant from successfully opposing the motion to enter a default judgment (based upon defendant’s failure to answer:) To successfully oppose a motion for leave to enter a default judgment based on the […]
The Second Department, over a dissent, determined that a new trial was required because the prosecutor created the impression a non-testifying witness [Drake] had identified the defendant as the shooter. Although the error was not preserved by objection, the court addressed the issue in the interest of justice. The court noted as well that the […]
The Second Department determined the defendant’s son did not waive the privilege associated with his youthful offender status. Although defendant’s son had pled guilty to an assault based upon his throwing an egg, he denied throwing the egg in his deposition during the related civil proceedings. That denial did not waive the privilege and the plaintiff could not gain access […]
The Second Department determined that the Not-for-Profit Corporation Law, which includes “crematory” in the definition of cemetery, did not pre-empt a village ordinance prohibiting the construction of a crematory in petitioner’s cemetery. Both express preemption and conflict preemption were addressed by the court: The Supreme Court correctly determined that Not-for-Profit Corporation Law article 15 did […]
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