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Question of Fact Whether a “Special Relationship” Had Developed Such that the Insurance Broker Might Be Liable for Negligent Advice About Coverage

In a full-fledged opinion by Judge Graffeo, over a dissent, the Court of Appeals determined there was a question of fact whether the relationship between the insurance broker and the plaintiff was a “special relationship” such that the broker might be liable for negligent advice about sufficient coverage. Plaintiff was a business owner who suffered […]

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Defendant Implicitly and Explicitly Waived His Right to Be Present During Side-Bar Conferences

In a full-fledged opinion by Judge Smith, over a dissent, the Court of Appeals determined defendant had implicitly and explicitly waived his right to be present during side-bar conferences (the “Antommarchi” right). The implicit waiver was the defendant’s inaction after the trial judge informed him he was welcome to attend the side-bar conferences. And the […]

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Termination of Petitioner’s Tenancy Based Upon An Isolated Angry Outburst Targeting a Housing Authority Employee Is “Shocking to the Conscience”

The First Department, after finding substantial evidence to substantiate the charges made by the housing authority (NYCHA) against the tenant-petitioner, determined the termination of the tenancy was “shocking to the conscience.” Petitioner had acted out angrily in a confrontation with a housing authority employee: …[W]e find that termination of petitioner’s tenancy, is, based on the […]

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Despite the Contractual Agreement to Apply Delaware Law, Because There Was No Conflict Between Delaware and New York Law, and Because the Parties Disagreed About Which Law to Apply, the Court Applied New York Law

The First Department determined there was no conflict between Delaware and New York law concerning non-solicitation agreements. Therefore, because the parties disagreed about which law should be applied (despite the contractual agreement to apply Delaware law), the court applied New York law, the law of the forum state: By their own terms, all of the […]

Operating a Scaffold for the Benefit of an Enumerated Activity Done by Others (Caulking) Entitles Scaffold Operator to Coverage Under Labor Law 240 (1)

The First Department determined a scaffold operator was entitled to summary judgment on his Labor Law 240 (1) claim. The scaffold was being operated for the benefit of caulkers who could not do their work without the scaffold operator: Although plaintiff …. was not operating the scaffold in his capacity as a window washer at […]

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Questioning of Defendant Did Not Constitute “Custodial Interrogation”

The Third Department determined County Court should not have suppressed defendant’s statements as the product of custodial interrogation. The police investigation had led to defendant’s IP address being associated with accessing child pornography on the Internet. The investigator went to defendant’s place of employment and asked the defendant to accompany him to the police station, […]

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Attorney Was an “Employee,” Not an Independent Contractor, for Puposes of the State and Local Employees’ Retirement System

The Third Department reversed the Comptroller’s ruling that petitioner, an attorney, was not an employee of the school district for purposes of benefits provided by the New York State and Local Employees’ Retirement System: …”[W]here professional services are involved, the absence of direct control is not dispositive of the existence of an employer-employee relationship” … […]

Review of Stipulated Custody Arrangement Warranted by Change of Circumstances/Seriousness of Mother’s Alcohol-Related Behavior Increased

The Third Department reversed Supreme Court finding that a change in mother’s alcohol-related behavior warranted a review of the custody arrangement set out in a stipulation: When parties enter into stipulations resolving custody issues, those stipulations will not be modified unless there is a sufficient change in circumstances since the time of the stipulation, and […]

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Criteria for Interpreting Ambiguous Terms in Separation Agreement

The Third Department explained how ambiguity in the terms of a separation agreement is to be handled by the courts: Ambiguity in a separation agreement is resolved, as with any contract, by determining the parties’ intent from within the instrument’s four corners, if possible, and otherwise from extrinsic evidence … . In doing so, “[t]he […]

Family Court Improperly Delegated Its Responsibility to Set the Terms of Father’s Supervised Visitation

The Third Department determined Family Court improperly relinquished its authority to dictate the terms of father’s supervised visitation to the petitioner (grandmother): …[W]e find merit to the father’s contention that Family Court erred in granting visitation subject to conditions of supervision set at the sole discretion of petitioner. Family Court is required to determine the […]

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