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Questions of Fact Raised About Whether Insufficient Warnings On Flammable Floor Refinishing Materials Constituted the Proximate Cause of the Injuries

In a full-fledged opinion by Justice Gische, the First Department determined a lawsuit based upon failure to warn survived summary judgment. While plaintiff’s decedent [Carino] was using highly flammable floor refinishing materials, the materials caught fire and plaintiff’s decedent was burned. There were warnings about fire on the containers and plaintiff’s decedent had worked with […]

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Motion to Vacate Pursuant to CPLR 5015 Should Have Been Granted On “Subject Matter Jurisdiction” and “Fraud Upon the Court” Grounds

In a full-fledged opinion by Justice Centra, the Fourth Department determined Wells Fargo had either perpetrated a fraud upon the court or failed to reveal all the facts to the court which granted a nunc pro tunc order adding a second parcel to a foreclosure action. The Fourth Department noted that Wells Fargo knew the […]

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“Summary Exhibits” Improperly Admitted Under “Voluminous Writings” Exception to the Best Evidence Rule

The Fourth Department reversed defendant’s conviction finding that summary exhibits were improperly admitted in evidence under the “voluminous writings” exception to the best evidence rule. In addition, the court determined defense counsel was ineffective for failure to review the summary exhibits and object to their admission: We conclude that the summary exhibits were improperly admitted […]

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Whether an Element of a Crime Has Been Proven Beyond a Reasonable Doubt Can Now Be Determined in a “Weight of the Evidence” Review/Such a Determination Is a Matter of Law Identical to a Determination the Evidence Is Legally Insufficient/After Making Such a “Legal” “Weight of the Evidence” Determination, the Court Is Not Constrained to Dismiss the Indictment As It Is When It Makes a “Factual” Determination a Conviction Is Not Supported by the Weight of the Evidence

In a full-fledged opinion by Justice Scudder, with concurring and dissenting opinions, the Fourth Department reduced defendant’s conviction from murder to manslaughter after applying a “weight of the evidence” analysis. The court explained it is now well-settled that a “weight of the evidence” review may consider whether the elements of the crime were proved beyond […]

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Defendant’s Reaching for Something in His Pocket, Without More, Did Not Justify Police Pursuit

The Fourth Department, over a dissent, determined that the defendant’s reaching for something in his pocket, without more, did not justify police pursuit. Therefore defendant’s suppression motion was properly granted: Here, although defendant was reaching for his jacket pocket as he walked or ran away from the second officer, neither officer testified that he saw […]

No Probable Cause for Arrest—Convictions Stemming from Arrest Reversed

The Fourth Department determined the deputy sheriff did not have probable cause to arrest the defendant without a warrant because the defendant had not committed a crime in the deputy’s presence. Therefore all the charges stemming from the illegal arrest were not supported by legally sufficient evidence: We conclude that the evidence is legally insufficient […]

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Plaintiff Raised a Question of Fact About Whether Her Employment Was Terminated in Retaliation for Protected Activity

The Fourth Department concluded plaintiff had raised a question of fact about whether the termination of her employment with the county was in retaliation for protected activity. The wife of plaintiff’s boss was a special education teacher working with plaintiff’s son. Shortly after complaining to the school district about the special education plaintiff’s son was […]

Hospital Does Not Have a Duty to Prevent a Patient from Leaving the Hospital Against Medical Advice or to Ensure Patient’s Safe Return Home

The Fourth Department, over a two-justice dissent, concluded a cause of action against defendant hospital brought by a patient who suffered frostbite after leaving the hospital against medical advice should have been dismissed: …[P]laintiffs alleged that defendant was negligent in failing to prevent plaintiff from leaving the hospital and in failing to ensure plaintiff’s safety […]

Skiers Do Not Assume the Risk of Recklessness on the Part of Another Skier

The Fourth Department determined the doctrine of assumption of the risk did not rule out a novice skier’s lawsuit against a skier who ran into her. There was a question whether defendant’s conduct was reckless: It is well established that, “by engaging in a sport orrecreational activity, a participant consents to those commonly appreciated risks […]

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