People v Flores is an important case. In Flores, four criminal defendants were tried together on gang assault charges. The County Court where they were being tried, however, decided that it was going to empanel an anonymous jury, with the jurors identified only by number, not by name. The defendants' objected, arguing multiple times that …
You Can Be Ticketed for Using Handheld GPS While Driving, Third Department Says
Over the last number of years, the State has made clear that it won't tolerating talking on the phone or texting while driving because of the serious dangers of distracted driving. The particular language of the Vehicle and Traffic Law prohibits the use of a “portable electronic device,” which is defined as a “hand-held device …
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Creating Conflict with First Department, Fourth Department Holds that Service of Notice of Voluntary Discontinance After Motion to Dismss is Timely
This is one of those questions that only the truest of procedural nerds can love. Say you commenced a case. You think it's a really good case. But you decide that you want to move on and pursue other matters, even though it is a good case. The CPLR says you can discontinue your case …
First Department Holds that Insurance Law 3105 Doesn’t Immunize Insurer from Proving Justifiable Reliance and Loss Causation to Succeed on Fraud Claim
Under New York Insurance Law § 3105, insurers have an out. If you materially misrepresent something when buying insurance, the insurer can get out of the contract. That's valuable to insurers as it transfers the risk of loss when the insurer was induced to issue a policy based upon false information. In Ambac Assur. Corp. …
Third Department, This Time, Upholds Expulsion of Student for Sexual Assault
In Matter of Weber v State Univ. of N.Y., Coll. At Cortland, the Third Department confirmed a SUNY determination to expel a student for sexually assaulting another student, finding that the victim never consented to sex. This case is pretty clear cut and would not be that remarkable if it wasn't for the Third Department's …
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First Department Holds Obligation to Repurchase Residential Mortgage Backed Securities Terminates After 6 Years
In Bank of N.Y. Mellon v WMC Mtge., LLC, Bank of NY Mellon was left holding thousands of defective residential mortgage backed securities after the real estate market collapse in 2008. The Bank of NY, which became the administrator of the loans in a securitized trust in June 2006, sued WMC Mortgage and JPMorgan Chase …
First Department Affirms Trial Court Decision to Set Aside Personal Injury Verdict for Egregious Conduct of Defendant’s Counsel
In Smith v Rudolph, the First Department affirms a trial court decision to set aside a personal injury verdict in the plaintiff's favor because defense counsel's conduct was so egregious that it deprived the plaintiff of fair trial. The Court held: Here are some examples of what defense counsel did to justify the new trial in the interest of justice: …
First Department Declines to Require Sex Offender Registration Where Underlying Crime Had No Sexual Motivation or Conduct
In People v Diaz, the First Department holds that Correction Law § 168-a(2)(d)(ii), which required the defendant to register as a sex offender in New York for the out-of-state murder of a minor, violated the defendant's substantive due process rights as applied. Particularly, under that section, an individual is required to register as a sex offender …
ZBA Tie Vote is Not a Default Denial When Exercising Original Jurisdiction, Holds Third Department
In Matter of Alper Restaurant Inc. v Town of Copake Zoning Board of Appeals, the Third Department holds that a Town ZBA's tie vote does not result in a default denial when it is exercising original jurisdiction to consider a special use permit. The default denial provisions only apply when a ZBA is exercising appellate jurisdiction. …
Third Department Surprisingly Vacates Expulsion of SUNY Student for Sexual Assault
In a surprising reversal in Matter of Haug v State Univ. of N.Y. at Potsdam, the Third Department annulled SUNY's determination to expel a student who sexually assaulted another student as unsupported by substantial evidence in the record. The SUNY Student Code required affirmative consent to sex, which it was undisputed that the student never received, …
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