A child is born to a married woman. Under New York law, the child is presumed to be a product of the woman's marriage. The presumption can be rebutted, of course, but in the beginning, the law assumes that the children of married spouses are legitimate. That makes sense. New York's policy is to keep …
Third Department Justices Disagree on Whether Student Accused of Sexual Assault Should Have Right to Cross-Examine Accuser
The Appellate Division, Third Department has decided a number of significant issues recently involving the State University of New York's disciplinary system in sexual assault cases. First, it was Matter of Haug v State Univ. of N.Y. at Potsdam, in which the Court annulled the expulsion of a student accused of sexual assault, finding that …
Fourth Department Affirms Class Certification for Buffalo Jills in Case Against NFL, Bills
In Ferrari v The National Football League, four former members of the Buffalo Jills, the Bills' cheerleading squad, brought a proposed class action against the NFL, the Bills, and their employer alleging that they weren't paid for hundreds of hours of work because they were "deliberately misclassified as independent contractors rather than employees." The Jills' …
Second Department Grants Leave to Appeal to Court of Appeals Sua Sponte. Can It Do That?
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: …
New York Appeals 