A defamation complaint was dismissed because the plaintiff, a journalist, was deemed to be a “limited public figure,” and there was no showing the challenged statements were made with “actual malice or gross irresponsibility.” The First Department noted that the statement which included the word “liar” was likely to be understood as opinion, not fact. Farber vs Jeffreys, 9297, 106399/09 First Dept. 2-19-13
A written agreement concerning a “success fee” and real estate broker’s commissions was deemed unenforceable as vague, “since the agreement fails to set the price or compensation to be received…”. Magnum Real Estate Services, Ind. Vs 133-134-135 Associates, LLC, 8058, 107850/06 First Dept. 2-14-13
The prosecutor’s failure to get the court’s permission to re-submit charges to a second grand jury was a jurisdictional defect requiring dismissal of the indictment after a guilty plea. The first grand jury took “no affirmative action” on drug charges before them. There were not enough votes to indict on or dismiss the charges. The prosecutor then submitted the drug charges to a second grand jury which voted to indict. The First Department noted: “Even without a formal grand jury vote, a charge can be deemed “dismissed” within the meaning of CPL 190.75(3) if the prosecutor “prematurely takes the charge away from the grand jury…”. People vs Smith, 7310, 135/10, 801/10 First Dept. 2-7-13
The First Department determined an intentional assault would not sever the causal connection between injury to the plaintiff and the bar’s serving alcohol to a person alleged to have been visibly intoxicated, as well as the bar’s alleged failure to provide proper security. Carver vs P.J. Carney’s, 9216, 103191/10 First Dept. 2-7-13
In a full-fledged opinion by Justice Richter, the First Department determined a property owner was responsible for ensuring the safe condition of a sidewalk that did not directly abut the defendant’s property. The sidewalk was separated from the defendant’s property by a strip of land owned the City. The Court determined the terms “abutting” and “adjoining” in the ordinance making a property owner responsible for the condition of a sidewalk should be construed “to include property in close proximity to an improved sidewalk although separated from it by [the strip of land]”… . James vs 1620 Westchester Avenue, LLC, 8710A, 17396/06 First Dept. 2-7-13
In a full-fledged opinion by Justice Richter, the First Department determined a property owner was responsible for ensuring the safe condition of a sidewalk that did not directly abut the defendant’s property. The sidewalk was separated from the defendant’s property by a strip of land owned by the City. The Court determined the terms “abutting” and “adjoining” in the ordinance making a property owner responsible for the condition of a sidewalk should be construed “to include property in close proximity to an improved sidewalk although separated from it by [the strip of land]”… . James v 1620 Westchester Avenue, LLC, 8710A, 17396/06 1st Dept. 2-7-13
The jury sent out a note asking “Is intent defined as premeditated desires or actions once engaged?” The trial judge responded to the question by reading an expanded definition of intent and explaining “intent does not require premeditation.” Defense counsel did not object to the way the judge handled the jury’s question. The First Department explained the statutory procedure for answering jury questions and held that the judge’s failure comply with CPL 310.30 by affording “counsel … the opportunity to suggest appropriate responses …,” was a reversible “mode of proceedings” error. People vs McGhee, 2010-05026, Ind. No. 2434/08 Second Dept. 2-6-13
“Mutual mistake may furnish the basis for the reformation of a written agreement where the signed writing does not express the actual agreement of the parties…. Parol evidence is admissible to establish the actual agreement. There is a heavy presumption that the executed agreement reflects the true intention of the parties, and a correspondingly high order of evidence is required to overturn the presumption …” The First Department found that a question of fact had been raised concerning whether the doctrine of mutual mistake should be applied to reform the contract in this case. West Vernon Petroleum Corp. vs. Singer Holding Corp., 2010-10522, Second Dept. 2-6-13
In a full-fledged opinion by Justice Austin, the First Department determined, as a case of first impression, an adopted child of the decedent should share in trusts created by the decedent even though the decedent’s wife surrendered the child for a second adoption eight years after the adoptive father’s death and the admission of his will to probate. The opinion includes a discussion of the rights of adopted children in this context. Matter of Svenningsen, 2010-11057, 2010-11113, 2010-11114 Second Dept. 2-6-13
In a Freedom of Information Law (FOIL) case brought by the New York Times against the City of New York Police Department, the First Department determined several important procedural aspects of a FOIL request including the proper vehicle to address an untimely response or ruling (Article 78), the proper vehicle for hybrid FOIL and declaratory relief (combined petition and complaint), and the “futility exception” to the exhaustion of administrative remedies applies to FOIL requests. With respect to the substance of the FOIL request, the First Department ruled that the home addresses of handgun licensees and the home addresses of hate crime victims should not be released. New York Times Company vs City of New York Police Department, 7994, 116449/10 First Dept. 2-5-13
Copyright © 2025 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy