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DRUG-RELATED NEGLECT FINDING NOT SUPPORTED BY THE EVIDENCE (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined the evidence did not support a drug-related neglect finding against father:

We agree with the father that the court's finding of neglect is not supported by the requisite preponderance of the evidence (see generally Family Ct Act § 1046 [b] [i]). “[P]roof that a person repeatedly misuses . . . drugs . . . to the extent that it has or would ordinarily have the effect of producing in the user thereof a substantial state of stupor, unconsciousness, intoxication, hallucination, disorientation, or incompetence, or a substantial impairment of judgment, or a substantial manifestation of irrationality, shall be prima facie evidence that a child of or who is the legal responsibility of such person is a neglected child except that such drug . . . misuse shall not be prima facie evidence of neglect when such person is voluntarily and regularly participating in a recognized rehabilitative program” … . Here, petitioner submitted evidence that the father tested positive for THC, oxycodone, and opioids on one occasion, which is insufficient to establish that the father repeatedly misused drugs … . The father's admission to using marihuana was also insufficient to meet petitioner's burden without further evidence as to the “duration, frequency, or repetitiveness of his drug use, or whether [the father] was ever under the influence of drugs while in the presence of the subject child” … . Matter of Bentley C. (Zachary D.), 2018 NY Slip Op 06667, Fourth Dept 10-5-18

FAMILY LAW (DRUG-RELATED NEGLECT FINDING NOT SUPPORTED BY THE EVIDENCE (FOURTH DEPT))/EVIDENCE (FAMILY LAW, NEGLECT, DRUG-RELATED NEGLECT FINDING NOT SUPPORTED BY THE EVIDENCE (FOURTH DEPT))/NEGLECT (FAMILY LAW, DRUG-RELATED NEGLECT FINDING NOT SUPPORTED BY THE EVIDENCE (FOURTH DEPT))

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INSUFFICIENT EVIDENCE DEFENDANT AND VICTIM WERE STRANGERS, RISK ASSESSMENT REDUCED BY 20 POINTS MAKING DEFENDANT A PRESUMPTIVE LEVEL ONE SEX OFFENDER (FOURTH DEPT).

The Fourth Department determined there was insufficient evidence the defendant and the 16-year-old victim and the 24-year-old were strangers. The risk assessment was therefore reduced by 20 points:

We agree with defendant that Supreme Court erred in assessing him 20 points under risk factor 7, which applies when, insofar as relevant here, the offender's conduct ” was directed at a stranger or a person with whom a relationship had been established or promoted for the primary purpose of victimization' “… . The 24-year-old defendant and the 16-year-old victim met while working at a local Red Cross; the two exchanged contact information and, months later, communicated through social media and by telephone before any sexual contact occurred. Under these circumstances, the People failed to establish by clear and convincing evidence that defendant and the victim were strangers at the time of the crime … . Moreover, the People “presented no evidence that defendant . . . targeted the victim for the primary purpose of victimizing her” … .

Without the 20 points assessed under risk factor 7, defendant is a presumptive level one sex offender … . People v Perez, 2018 NY Slip Op 06666, Fourth Dept 10-5-18

CRIMINAL LAW (SEX OFFENDER REGISTRATION ACT, INSUFFICIENT EVIDENCE DEFENDANT AND VICTIM WERE STRANGERS, RISK ASSESSMENT REDUCED BY 20 POINTS MAKING DEFENDANT A PRESUMPTIVE LEVEL ONE SEX OFFENDER (FOURTH DEPT))/SEX OFFENDER REGISTRATION ACT (SORA) (INSUFFICIENT EVIDENCE DEFENDANT AND VICTIM WERE STRANGERS, RISK ASSESSMENT REDUCED BY 20 POINTS MAKING DEFENDANT A PRESUMPTIVE LEVEL ONE SEX OFFENDER (FOURTH DEPT))

SUPERIOR COURT INFORMATION WAS JURISDICTIONALLY DEFECTIVE BECAUSE IT DID NOT INCLUDE A CRIME CHARGED IN THE FELONY COMPLAINT OR A LESSER INCLUDED OFFENSE (FOURTH DEPT).

The Fourth Department, reversing defendant's conviction by guilty plea, determined that the superior court information was jurisdictionally defective:

A defendant may waive indictment and consent to be prosecuted by a superior court information (see CPL 195.20…). As relevant here, “[t]he offenses named [in a superior court information] may include any offense for which the defendant was held for action of a grand jury”… , i.e., “the same crime as [charged in] the felony complaint or a lesser included offense of that crime”… . Inasmuch as attempted kidnapping in the second degree is not a crime charged in the felony complaint or a lesser included offense, the superior court information is jurisdictionally defective. “That defect does not require preservation, and it survives defendant's waiver of the right to appeal and his guilty plea”… . People v Bennett, 2018 NY Slip Op 06663. Fourth Dept 10-5-18

CRIMINAL LAW (SUPERIOR COURT INFORMATION WAS JURISDICTIONALLY DEFECTIVE BECAUSE IT DID NOT INCLUDE A CRIME CHARGED IN THE FELONY COMPLAINT OR A LESSER INCLUDED OFFENSE (FOURTH DEPT))/SUPERIOR COURT INFORMATION (SUPERIOR COURT INFORMATION WAS JURISDICTIONALLY DEFECTIVE BECAUSE IT DID NOT INCLUDE A CRIME CHARGED IN THE FELONY COMPLAINT OR A LESSER INCLUDED OFFENSE (FOURTH DEPT))

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THERE IS NO MECHANISM IN THE CRIMINAL PROCEDURE LAW FOR A REPORTER’S MOTION TO INTERVENE IN A CRIMINAL PROCEEDING, THE REQUIREMENTS FOR A CPLR MOTION TO INTERVENE WERE NOT MET (FOURTH DEPT).

The Fourth Department determined there is no mechanism in the Criminal Procedure Law for a nonparty to intervene in a criminal case. Here a reporter sought information about the jurors who were deliberating a murder case. The court further found that the requirements for a CPLR 1013, 1014 motion to intervene were not met here:

… [I]t is well established that “[t]he Criminal Procedure Law provides no mechanism for a nonparty to intervene or be joined in a criminal case” … . Moreover, even assuming, arguendo, that the mechanism for intervening in an action set forth in the Civil Practice Law and Rules authorizes such an intervention in a criminal case (see CPLR 1013), we note that there is a statutory requirement that “[a] motion to intervene shall be accompanied by a proposed pleading setting forth the claim or defense for which intervention is sought” (CPLR 1014), and thus the court here would have “had no power to grant . . . leave to intervene” without a proposed pleading from the intervenors … . Consequently, in each appeal we must vacate the order [which denied the motion to intervene on other grounds] and dismiss the appeal. People v Conley, 2018 NY Slip Op 06647, Fourth Dept 10-5-18

CRIMINAL LAW (MOTION TO INTERVENE, THERE IS NO MECHANISM IN THE CRIMINAL PROCEDURE LAW FOR A REPORTER'S MOTION TO INTERVENE IN A CRIMINAL PROCEEDING, THE REQUIREMENTS FOR A CPLR MOTION TO INTERVENE WERE NOT MET (FOURTH DEPT))/CIVIL PROCEDURE (MOTION TO INTEREVENE, THERE IS NO MECHANISM IN THE CRIMINAL PROCEDURE LAW FOR A REPORTER'S MOTION TO INTERVENE IN A CRIMINAL PROCEEDING, THE REQUIREMENTS FOR A CPLR MOTION TO INTERVENE WERE NOT MET (FOURTH DEPT))/CPLR 1013, 1014  (MOTION TO INTERVENE, THERE IS NO MECHANISM IN THE CRIMINAL PROCEDURE LAW FOR A REPORTER'S MOTION TO INTERVENE IN A CRIMINAL PROCEEDING, THE REQUIREMENTS FOR A CPLR MOTION TO INTERVENE WERE NOT MET (FOURTH DEPT))/INTERVENE, MOTION TO (THERE IS NO MECHANISM IN THE CRIMINAL PROCEDURE LAW FOR A REPORTER'S MOTION TO INTERVENE IN A CRIMINAL PROCEEDING, THE REQUIREMENTS FOR A CPLR MOTION TO INTERVENE WERE NOT MET (FOURTH DEPT))/REPORTERS (CRIMINAL LAW, MOTION TO INTERVENE, THERE IS NO MECHANISM IN THE CRIMINAL PROCEDURE LAW FOR A REPORTER'S MOTION TO INTERVENE IN A CRIMINAL PROCEEDING, THE REQUIREMENTS FOR A CPLR MOTION TO INTERVENE WERE NOT MET (FOURTH DEPT))NEWSPAPERS (CRIMINAL LAW, MOTION TO INTERVENE, THERE IS NO MECHANISM IN THE CRIMINAL PROCEDURE LAW FOR A REPORTER'S MOTION TO INTERVENE IN A CRIMINAL PROCEEDING, THE REQUIREMENTS FOR A CPLR MOTION TO INTERVENE WERE NOT MET (FOURTH DEPT))/PRESS (CRIMINAL LAW, MOTION TO INTERVENE, THERE IS NO MECHANISM IN THE CRIMINAL PROCEDURE LAW FOR A REPORTER'S MOTION TO INTERVENE IN A CRIMINAL PROCEEDING, THE REQUIREMENTS FOR A CPLR MOTION TO INTERVENE WERE NOT MET (FOURTH DEPT))/MEDIA (CRIMINAL LAW, MOTION TO INTERVENE, THERE IS NO MECHANISM IN THE CRIMINAL PROCEDURE LAW FOR A REPORTER'S MOTION TO INTERVENE IN A CRIMINAL PROCEEDING, THE REQUIREMENTS FOR A CPLR MOTION TO INTERVENE WERE NOT MET (FOURTH DEPT))

SENTENCING JUDGE INDICATED HE WAS BOUND BY AN AGREEMENT WITH THE PEOPLE CONCERNING DEFENDANT’S SENTENCE, HOWEVER, A SENTENCING JUDGE HAS DISCRETION IN SENTENCING, MATTER REMITTED FOR RESENTENCING (FOURTH DEPT).

The Fourth Department, vacating defendant's sentence, determined it appeared the sentencing judge mistakenly believed he was bound by his agreement with the People to impose a particular sentence:

County Court initially imposed a one-year term of interim probation. The court informed defendant that, if he complied with the terms of interim probation, the court would impose a five-year term of probation. Defendant, however, repeatedly violated those terms. At sentencing, the court stated that “the only way” it could secure defendant a plea bargain involving probation was to help negotiate a plea agreement with “specific terms,” including a “severe sanction” in the event that he violated the terms of interim probation. The court then stated that it had to “keep [its] word,” presumably to the People, because otherwise it would be unable to secure the “same opportunity for another defendant who is in a similar situation.” The court further stated that it was “compelled” to impose an indeterminate term of incarceration of 2⅓ to 7 years, which is the maximum legal sentence (see Penal Law § 70.00 [2] [d]; [3] [b]).

Defendant contends that the court failed to exercise its discretion at sentencing. We agree. “[T]he sentencing decision is a matter committed to the exercise of the court's discretion . . . made only after careful consideration of all facts available at the time of sentencing”… . “The determination of an appropriate sentence requires the exercise of discretion after due consideration given to, among other things, the crime charged, the particular circumstances of the individual before the court and the purpose of a penal sanction, i.e., societal protection, rehabilitation and deterrence” … . Here, the court indicated that it was bound by its agreement with the People to impose a particular sentence … . People v Dupont, 2018 NY Slip Op 06392, Fourth Dept 9-28-18

CRIMINAL LAW (SENTENCING JUDGE INDICATED HE WAS BOUND BY AN AGREEMENT WITH THE PEOPLE CONCERNING DEFENDANT'S SENTENCE, HOWEVER, A SENTENCING JUDGE HAS DISCRETION IN SENTENCING, MATTER REMITTED FOR RESENTENCING (FOURTH DEPT))/JUDGES (CRIMINAL LAW, SENTENCING JUDGE INDICATED HE WAS BOUND BY AN AGREEMENT WITH THE PEOPLE CONCERNING DEFENDANT'S SENTENCE, HOWEVER, A SENTENCING JUDGE HAS DISCRETION IN SENTENCING, MATTER REMITTED FOR RESENTENCING (FOURTH DEPT))/SENTENCING (CRIMINAL LAW, SENTENCING JUDGE INDICATED HE WAS BOUND BY AN AGREEMENT WITH THE PEOPLE CONCERNING DEFENDANT'S SENTENCE, HOWEVER, A SENTENCING JUDGE HAS DISCRETION IN SENTENCING, MATTER REMITTED FOR RESENTENCING (FOURTH DEPT))

INMATE’S ‘THREAT’ TO BRING A LAWSUIT WAS NOT AN ACTIONABLE RULE VIOLATION (FOURTH DEPT).

The Fourth Department, annulling the “threats” charge, determined that the “threat” to file a lawsuit was not a proper basis for the charge:

… [R]espondent's determination of guilt on the threats charge under inmate rule 102.10 must be annulled. Although respondent correctly notes that “an inmate need not threaten violence in order to be found guilty of [making threats under rule 102.10]” … , a statement cannot be a “threat” within the meaning of inmate rule 102.10 unless, at the very minimum, it [*2]conveys an intent to do something illegal, improper, or otherwise prohibited … . Here, petitioner did not convey an intent to do anything illegal, improper, or otherwise prohibited. To the contrary, petitioner merely conveyed his intent to exercise his constitutional right to access the courts … , and he cannot be penalized for “threatening” to do something, i.e., file a lawsuit, that he has every legal right to do. As the United States Supreme Court has explained, “[t]o punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort, . . . and for an agent of the State to pursue a course of action whose objective is to penalize a person's reliance on his legal rights is patently unconstitutional' ” (Bordenkircher v Hayes, 434 US 357, 363 [1978], reh denied435 US 918 [1978], quoting Chaffin v Stynchcombe, 412 US 17, 32 n 20 [1973]). Moreover, respondent's interpretation of the word “threat” in this context would effectively nullify the protections afforded by Correction Law § 138 (4), which bars an inmate from being “disciplined for making written or oral statements, demands, or requests involving a change of institutional conditions, policies, rules, regulations, or laws affecting an institution.” Matter of Gourdine v Annucci, 2018 NY Slip Op 06391, Fourth Dept 9-29-18

DISCIPLINARY HEARINGS (INMATES) (INMATE'S 'THREAT' TO BRING A LAWSUIT WAS NOT AN ACTIONABLE RULE VIOLATION (FOURTH DEPT))

DEFENDANT OFFERED A NONNEGLIGENT EXPLANATION OF THE REAR-END COLLISION, PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined plaintiffs' motion for summary judgment in this rear-end collision case should not have been granted. Defendant offered a nonnegligent explanation of the accident:

“It is well settled that a rear-end collision with a stopped vehicle establishes a prima facie case of negligence on the part of the driver of the rear vehicle . . . In order to rebut the presumption [of negligence], the driver of the rear vehicle must submit a non[]negligent explanation for the collision . . . One of several nonnegligent explanations for a rear-end collision is a sudden stop of the lead vehicle . . . , and such an explanation is sufficient to overcome the inference of negligence and preclude an award of summary judgment” … . Here, defendant averred that he was traveling behind the vehicle in which plaintiff was a passenger when it stopped suddenly at a green light and that, despite his efforts, he could not stop in time to avoid a collision. Plaintiff offered a contrary account in her affidavit. Thus, there is an issue of fact sufficient to defeat plaintiffs' motion with respect to the issue of negligence … . Macri v Kotrys, 2018 NY Slip Op 06387, Fourth Dept 9-28-18

NEGLIGENCE (DEFENDANT OFFERED A NONNEGLIGENT EXPLANATION OF THE REAR-END COLLISION, PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))/TRAFFIC ACCIDENTS  (DEFENDANT OFFERED A NONNEGLIGENT EXPLANATION OF THE REAR-END COLLISION, PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))/REAR-END COLLISIONS  (DEFENDANT OFFERED A NONNEGLIGENT EXPLANATION OF THE REAR-END COLLISION, PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))

FOR CAUSE CHALLENGE TO JUROR, BASED UPON IMPLIED BIAS, SHOULD HAVE BEEN GRANTED, JUROR’S LIFE WAS SAVED BY THE TRAUMA SURGEON WHO TESTIFIED ABOUT THE VICTIM’S WOUNDS, MULTIPLE STAB WOUNDS DID NOT SUPPORT LESSER INCLUDED OFFENSE OF RECKLESS ASSAULT (FOURTH DEPT).

The Fourth Department reversed defendant's conviction finding that the for cause challenge to a juror should have been granted. The trauma surgeon who testified about the wounds suffered by the victim had been the trauma surgeon who saved the juror's life. Because there will be a new trial, the Fourth Department ruled the evidence (multiple stab wounds) did not support charging the jury with the lesser included offense of reckless assault:

A prospective juror may be challenged for cause on, inter alia, the ground that he or she has some relationship to a prospective witness at trial of a nature that “is likely to preclude [the prospective juror] from rendering an impartial verdict”… . Such a relationship gives rise to what is known as “an implied bias' . . . that requires automatic exclusion from jury service regardless of whether the prospective juror declares that the relationship will not affect her ability to be fair and impartial”… , and “cannot be cured with an expurgatory oath” … . Not every potential juror-witness relationship necessitates disqualification, but courts are “advised . . . to exercise caution in these situations by leaning toward disqualifying a prospective juror of dubious impartiality' “… . Relevant factors for the court to consider in determining whether disqualification is necessary include the nature of the relationship and the frequency of contact … . The denial of a challenge for cause has been upheld where the relationship at issue arose in a professional context and “was distant in time and limited in nature” … . Conversely, the Court of Appeals has required disqualification where the relationship was “essentially professional” but “also somewhat intimate” .

We conclude that the juror's testimony indicated a likelihood that her relationship to the surgeon was of a nature that would preclude her from rendering an impartial verdict. The juror was in the hospital for an extended period of time suffering from an unspecified trauma. During that time, the surgeon was primarily responsible for the juror's care, and they had contact on at least a daily basis. Most significantly, the juror was convinced that the surgeon had saved her life. Thus, although the relationship arose in a professional context, it was, at least from the juror's perspective, something more than a mere professional relationship. People v Farley, 2018 NY Slip Op 06380, Fourth Dept 9028-18

CRIMINAL LAW (FOR CAUSE CHALLENGE TO JUROR, BASED UPON IMPLIED BIAS, SHOULD HAVE BEEN GRANTED, JUROR'S LIFE WAS SAVED BY THE TRAUMA SURGEON WHO TESTIFIED ABOUT THE VICTIM'S WOUNDS, MULTIPLE STAB WOUNDS DID NOT SUPPORT LESSER INCLUDED OFFENSE OF RECKLESS ASSAULT (FOURTH DEPT)}/JURORS (CRIMINAL LAW, FOR CAUSE CHALLENGE TO JUROR, BASED UPON IMPLIED BIAS, SHOULD HAVE BEEN GRANTED, JUROR'S LIFE WAS SAVED BY THE TRAUMA SURGEON WHO TESTIFIED ABOUT THE VICTIM'S WOUNDS, MULTIPLE STAB WOUNDS DID NOT SUPPORT LESSER INCLUDED OFFENSE OF RECKLESS ASSAULT (FOURTH DEPT)}/FOR CAUSE CHALLENGE (CRIMINAL LAW, FOR CAUSE CHALLENGE TO JUROR, BASED UPON IMPLIED BIAS, SHOULD HAVE BEEN GRANTED, JUROR'S LIFE WAS SAVED BY THE TRAUMA SURGEON WHO TESTIFIED ABOUT THE VICTIM'S WOUNDS, MULTIPLE STAB WOUNDS DID NOT SUPPORT LESSER INCLUDED OFFENSE OF RECKLESS ASSAULT (FOURTH DEPT)}/ASSAULT (CRIMINAL LAW, FOR CAUSE CHALLENGE TO JUROR, BASED UPON IMPLIED BIAS, SHOULD HAVE BEEN GRANTED, JUROR'S LIFE WAS SAVED BY THE TRAUMA SURGEON WHO TESTIFIED ABOUT THE VICTIM'S WOUNDS, MULTIPLE STAB WOUNDS DID NOT SUPPORT LESSER INCLUDED OFFENSE OF RECKLESS ASSAULT (FOURTH DEPT))

ARBITRATOR’S AWARD WAS NOT IRRATIONAL, SUPREME COURT SHOULD NOT HAVE VACATED THE AWARD IN THIS REAR-END COLLISION CASE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the arbitrator's award in this rear-end collision case should not have been vacated:

“It is well settled that judicial review of arbitration awards is extremely limited” … . As relevant here, a court may vacate an arbitration award if it finds that the rights of a party were prejudiced when “an arbitrator . . . exceeded his [or her] power or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made” (CPLR 7511 [b] [1] [iii]).

… An arbitrator exceeds his or her power where, inter alia, the award is “irrational”… , i.e., “there is no proof whatever to justify the award”… . Where, however, “an arbitrator offers even a barely colorable justification for the outcome reached, the arbitration award must be upheld” … . Here, the arbitrator's determination is not irrational inasmuch as defendant submitted evidence establishing that plaintiff's injuries were not serious or were not caused by the accident … .

Plaintiff correctly concedes that the arbitrator did not “imperfectly execute[]” his power (CPLR 7511 [b] [1] [iii]), inasmuch as the arbitration award did not ” leave[] the parties unable to determine their rights and obligations,' ” fail to ” resolve the controversy submitted or . . . create[] a new controversy' ” … .

Additionally, “it is well established that an arbitrator's failure to set forth his [or her] findings or reasoning does not constitute a basis to vacate an award” … . Whitney v Perrotti, 2018 NY Slip Op 06343, Fourth Dept 9-28-18

ARBITRATION (ARBITRATOR'S AWARD WAS NOT IRRATIONAL, SUPREME COURT SHOULD NOT HAVE VACATED THE AWARD IN THIS REAR-END COLLISION CASE (FOURTH DEPT))/CPLR 7511(ARBITRATOR'S AWARD WAS NOT IRRATIONAL, SUPREME COURT SHOULD NOT HAVE VACATED THE AWARD IN THIS REAR-END COLLISION CASE (FOURTH DEPT))

QUESTION OF FACT WHETHER DEFENDANT ACTED RECKLESSLY IN THIS SKIING ACCIDENT CASE, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant's motion for summary judgment in this skiing accident case should not have been granted. Plaintiff was injured in a collision with defendant. The assumption of the risk doctrine did not preclude the suit because a question of fact had been raised about whether defendant acted recklessly:

… [P]laintiffs submitted, inter alia, an affidavit from an emergency room physician who was also an 11-year veteran of the National Ski Patrol. Based on his review of the depositions and other records related to the case, the expert opined that, given the nature and extent of plaintiff's injuries, “there [was] no question [that] the force with which [defendant] impacted [plaintiff's] left side and back was immense” and that plaintiff's injuries were “not consistent with [defendant's] deposition testimony” that he had come to or nearly come to a complete stop. The expert further opined that, “[g]iven that [plaintiff] was skiing slowly at the time of the collision, the severe injuries sustained by [both] men, and their unanimous testimony that the collision was severe, it [was] clear [that defendant] was snowboarding at an extremely high rate of speed at the time of the collision.” The expert thus concluded that defendant had “unreasonably increased the risk of harm” to plaintiff by cutting across the beginner trail “at an extremely high rate of speed . . . knowing that there would be skiers and snowboarders traveling down [the beginner trail]” and that defendant's conduct constituted “an egregious breach of good and accepted snowboarding practices.” * * *

… [T]the record establishes that the collision was exceedingly violent and, inasmuch as we must accept as true plaintiff's testimony that he was the one who was skiing slowly … , there is “at least a question of fact . . . whether . . . defendant's speed in the vicinity and overall conduct was reckless” … . Contrary to defendant's contention, the affidavit of plaintiffs' expert was neither conclusory nor speculative … . Sopkovich v Smith, 2018 NY Slip Op 06342, Fourth Dept 9-28-18

NEGLIGENCE (QUESTION OF FACT WHETHER DEFENDANT ACTED RECKLESSLY IN THIS SKIING ACCIDENT CASE, DEFENDANT'S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))/SKIING (QUESTION OF FACT WHETHER DEFENDANT ACTED RECKLESSLY IN THIS SKIING ACCIDENT CASE, DEFENDANT'S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))/ASSUMPTION OF RISK (SKIING ACCIDENT, QUESTION OF FACT WHETHER DEFENDANT ACTED RECKLESSLY IN THIS SKIING ACCIDENT CASE, DEFENDANT'S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))

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