What must a defendant show under the trivial defect doctrine to be entitled to summary judgment dismissing a personal injury claim as a matter of law? The Second Department held that although an objective measurement of a defect may be the best evidence of triviality, the Court held that it is not always required to …
NYSBA CasePrepPlus Newsletter 9.27.24: Family Courts Must Hear Applications to Have Children Returned to Their Parents’ Care Expeditiously
The First Department this week emphasized just how important it is for Family Courts to hear and determine expeditiously parents’ applications to have their children returned to their care in Family Court Act article 10 proceedings. Family Court Act § 1028 requires the court to hold a hearing within three days of the parents’ application, and …
NYSBA CasePrepPlus Newsletter 9.20.24: Is a State Trooper Twice Intentionally Ramming Cars on the Thruway Enough to Charge Him With Depraved Indifference Murder?
When an on-duty state trooper in two separate incidents rams his police vehicle into occupied vehicles while travelling at speeds up to 130 miles per hour on the Thruway, causing those vehicles to crash and an 11-year-old girl to be killed, does the evidence presented to the grand jury support a criminal charge of depraved …
NYSBA CasePrepPlus Newsletter 9.13.24: Can a Superior Court Information Charge a Criminal Defendant With Counts of a higher Degree Than Contained in the Felony Complaint?
The First Department this week tackled whether the New York Constitution authorizes a criminal defendant to be charged in a superior court information with counts of a higher level or degree than were originally contained in the felony complaint. Joining the Third Department, the First Department held that it does not. Let’s take a look …
NYSBA CasePrepPlus Newsletter 9.6.24: Can an ACA Health Insurance Policy be an Available Collateral Source that Could Offset a Damages Award to an Uninsured Plaintiff?
Can the availability of health insurance to uninsured plaintiffs through the Patient Protection and Affordable Care Act entitle a defendant in a personal injury action to a collateral source hearing under CPLR 4545 to determine if that potential insurance could offset futural medical expense awards? The Second Department tackled that novel question in New York …
NYSBA CasePrepPlus Newsletter 8.30.24: Is New York’s Early Mail Voter Act Constitutional?
Does the New York Constitution require voters to vote in person in their election districts, and thereby place a limitation on the power of the legislature to decide what methods of voting may be authorized without a constitutional amendment? Holding that the Constitution contains no such requirement, the Court of Appeals this week declared that …
NYSBA CasePrepPlus Newsletter 8.16.24: Is Facebook a “Public Forum” Under New York’s Anti-SLAPP Statute?
Facebook and other social media sites are public fora under New York’s statute protecting against strategic lawsuits against public participation. Indeed, the Second Department concluded, Facebook has long offered the public a forum for expressing their opinions on matters of public and private interest, so statements made on social media can qualify for protection under …
NYSBA CasePrepPlus NewsLetter 8.9.24: The First Department Refuses to Lift the Narrowed Gag Order in President Donald Trump’s Criminal Case
This week, the First Department once again refused to intervene to rescind the gag order in President Donald Trump’s criminal proceeding, holding that because the former president has not yet been sentenced, the paired down gag order to protect against statements about the prosecution and court staff remain necessary to protect them from threats, intimidation, …
NYSBA CasePrepPlus Newsletter 8.2.24: Does the NY Constitution’s Green Amendment That Guarantees Clean Air, Clean Water, and a Healthful Environment Apply to Private Conduct?
Does New York’s new constitutional right to clean air, clean water, and a healthful environment under the Green Amendment apply to private conduct, like the operation of the State’s second largest landfill? The Fourth Department held that it does not, but only applies to state action, albeit noting that no party contested that issue. This …
NYSBA CasePrepPlus Newsletter 7.26.24: The First Department Warns Parties to Beware the Benefit of Their Bargains and Think Through the Consequences of the Language They Choose in Commercial Contracts
When two sophisticated commercial entities bargain for a commercial agreement, they are bound by the provisions, broad or narrow, that they draft and the consequences that flow from the language that they choose. Courts are not free to alter those agreements merely because they end up being a bad bargain for one side or the …
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