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Re: A Mental Hygiene Law Civil Commitment Proceeding for a Sex Offender, Failure to Give the Jury an Adequate Explanation of the Meaning of “Sex Offense” May Have Resulted in an Unsupported “Mental Abnormality” Finding

The Second Department determined the trial court committed reversible error by not, upon defense counsel’s request, giving a further instruction to the jury on the meaning of “sex offense” as part of the jury charge on mental abnormality. The jury found the appellant had committed a sexually motivated felony and suffers from a mental abnormality […]

A Prima Facie Case Under the Dram Shop Act Had Been Made Against Both Bars Which Served Plaintiff’s Decedent, Even Though the Alcohol Served at the First Bar Would Have Metabolized by the Time of the Accident Had Plaintiff’s Decedent Not Continued to Drink at the Second Bar

The Second Department determined a bar, defendant Mulinos, could be liable under the Dram Shop Act even though the alcohol consumed at Mulinos would have metabolized by the time of the vehicle accident had plaintiff’s decedent not consumed more alcohol. After leaving Mulinos, however, plaintiff’s decedent went to another bar, defendant Trotters Tavern, and was […]

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County Could Not Shift Obligation to Pay Property Tax Refunds to Taxing Districts

In a full-fledged opinion by Judge Abdus-Salaam, which includes extensive historical, theoretical, constitutional and statutory discussions of the issues involved, the Court of Appeals determined Nassau County could not shift its obligation to pay real property tax refunds from the county to its individual taxing districts. The county’s attempt to supersede a special state tax […]

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No Prejudice from Loss of Hand-Written Police Report (Rosario Material)/Trial Judge Did Not Abuse Discretion In Denying Request for Adverse Inference Jury Charge

In a full-fledged opinion by Judge Read, over a dissent, the Court of Appeals determined the trial judge did not abuse his discretion by failing to give the adverse inference charge with respect to a hand-written police report (“scratch 61”) which could not be located. The opinion explains the history of the sanctions appropriate when […]

Contradictory Information in Disclaimer Letters Did Not Invalidate the Disclaimer of Assault and Battery Coverage

Over a dissent, the Court of Appeals determined the insurance company, QBE, properly disclaimed coverage for an assault and battery claim against the insured bar, Jinx-Proof, despite contradictory language in the two disclaimer letters: The courts below properly determined that QBE effectively disclaimed coverage for the assault and battery claims asserted in the underlying action. […]

Disclaimer Based Upon Insured’s Non-Cooperation Was Timely—Must Allow Longer Period to Demonstrate Diligence In Seeking Cooperation

In a full-fledged opinion by Judge Pigott, the Court of Appeals determined that the insurers disclaimer based upon the insured’s failure to cooperate with the investigation was timely and enforceable: The question whether an insurer disclaimed as soon as reasonably possible is necessarily case-specific. In some cases, very different from this one, the justification for […]

Reversing Its Prior Decision in this Case, the Court of Appeals Determined the “Servidone” Rule Is to Be Followed in New York/An Insurer Which Has Breached Its Duty to Defend the Insured May Rely On Policy Exclusions to Escape Its Duty to Indemnify the Insured

In a full-fledged opinion by Judge Smith, over a dissent, the Court of Appeals reversed itself on reargument and adhered to precedent—Servidone Const Corp v Security Ins Co of Hartford, 64 NY 2d 419. Under Servidone, an insurer which breached its duty to defend can still rely on policy exclusions to escape the duty to […]

Attempted Kidnapping Charge Supported by Sufficient Evidence/Defendant Tried to Convince the 10-Year-Old Victim to Take His Keys and Go to His Apartment

The First Department, over a dissent, determined there was sufficient evidence to support the attempted kidnapping charge, in spite of the absence of force. The defendant tried to convince the 10-year-old victim to take his keys and go to his apartment: The crime of attempted kidnapping in the second degree was established by evidence that […]

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