57 results for 'judge:"McShan"'.
J. McShan finds that the lower court properly denied plaintiff access to recover personal property at a parcel sold along with four others to resolve a long-running family dispute over partitioning real property because issues raised on appeal amounted to a request to vacate partition and sale, a new action not preserved for review. Affirmed.
Court: New York Appellate Divisions, Judge: McShan, Filed On: December 7, 2023, Case #: 535558, Categories: Property, Contract
J. McShan finds that the lower court properly dismissed a land dispute tied to a scrivener's error discovered years later when the parcel was conveyed as part of a will because plaintiff was not time-barred from quieting title via chain of ownership in the deeds, and proof offered by the will beneficiary established her entitlement to judgment as a matter of law. Affirmed.
Court: New York Appellate Divisions, Judge: McShan, Filed On: November 30, 2023, Case #: 534143, Categories: Civil Procedure, Property, Wills / Probate
J. McShan finds that the lower court properly denied a father custody and visitation concerning his sons and awarded their mother full custody because evidence supported the mother's claims that the father committed domestic violence against her and the boys' maternal grandmother. Affirmed.
Court: New York Appellate Divisions, Judge: McShan, Filed On: November 22, 2023, Case #: CV-22-2036, Categories: Family Law
J. McShan finds that a village police officer's final average salary was properly recalculated for pension purposes by eliminating three lump-sum payouts authorized by a union municipal contract in which wage increases had been deferred. Under retirement and social security law, only salary for "time worked" is pensionable. Affirmed.
Court: New York Appellate Divisions, Judge: McShan, Filed On: November 16, 2023, Case #: 536200, Categories: Pensions
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J. McShan finds that the lower court properly convicted defendant based on his guilty plea to attempted promoting prison contraband for possessing a ceramic-type scalpel blade. Defendant contends the superior court information to which he pleaded after waiving indictment was jurisdictionally defective for failing to charge the same crime as the felony complaint, but the penal law section citation merely contained a typographical error. Affirmed.
Court: New York Appellate Divisions, Judge: McShan, Filed On: November 2, 2023, Case #: 112255, Categories: Criminal Procedure, Plea
J. McShan finds that the lower court properly dismissed a challenge to the decision to grant easements to facilitate construction of a pedestrian bridge and a public plaza for lack of standing because plaintiff did not suffer an "injury in fact" beyond that of any commercial neighbor from increased traffic and added competition. Affirmed.
Court: New York Appellate Divisions, Judge: McShan, Filed On: November 2, 2023, Case #: 535239, Categories: Municipal Law, Property, Zoning
J. McShan finds that the lower court improperly classified defendant as a risk level three sex offender with sexually violent and predicate offender designations. Defendant, who had been deemed a level two offender for past offenses, was not notified that behaviors underlying juvenile adjudications and concurrent change-of-address violations would be proffered in an attempt to raise the risk level. Reversed.
Court: New York Appellate Divisions, Judge: McShan, Filed On: October 19, 2023, Case #: 533074, Categories: Sentencing, Sex Offender
J. McShan finds that the lower court properly declined to vacate defendant's conviction for attempted drug sale based on ineffective assistance claims. Defendant contends counsel claimed to have seen laboratory test results about drugs involved in two separate controlled buys even though such a report did not exist, but the self-serving contention was belied by the record. Affirmed.
Court: New York Appellate Divisions, Judge: McShan, Filed On: October 12, 2023, Case #: 111827, Categories: Drug Offender, Evidence, Ineffective Assistance
[Consolidated.] J. McShan finds that the family court properly shifted sole legal and physical custody of a child to the father based on credible evidence of parental alienation on the part of the mother and her lack of commitment to fostering a father-child relationship. The mother lacked awareness of the severity of her mental health and the effects it had on the child. Affirmed.
Court: New York Appellate Divisions, Judge: McShan, Filed On: September 14, 2023, Case #: 535871, Categories: Family Law
J. McShan finds that the lower court improperly partially granted the father's request to modify a custody order to give him more time with the children. The custody order on appeal is almost two years old and the parties have offered no new insights into the effect of the current visitation arrangement, making it impossible to make an informed determination regarding appropriate visitation. The matter is remitted to the family court to determine a suitable visitation arrangement.
Court: New York Appellate Divisions, Judge: McShan, Filed On: September 14, 2023, Case #: 534590, Categories: Family Law
J. McShan finds that an appeal should be dismissed as moot as brought from the finding entered for the liability carrier in claims brought after the driver for a medical transit agency sought benefits for injuries incurred in a motor vehicle accident. The carrier and the staffing firm that supplied the driver no longer were aggrieved because the workers' compensation board amended a prior holding in light of subsequent precedent.
Court: New York Appellate Divisions, Judge: McShan, Filed On: August 31, 2023, Case #: 533111, Categories: Civil Procedure, Workers' Compensation
J. McShan finds that the lower court properly dismissed claims by a snowboarder injured from contact with a metal bolt protruding from a telephone pole at a state-owned ski center. The doctrine of assumption of risk applied to the downhill activity, and the snowboarder was off-trail, despite signs that the area was closed, when he made contact. Affirmed.
Court: New York Appellate Divisions, Judge: McShan, Filed On: August 3, 2023, Case #: 535297, Categories: Tort
J. McShan finds that a police officer was properly denied performance of duty and accidental disability retirement benefits by the state. The officer failed to provide required written notice to his employer within 90 days of either of two claimed incidents, one for post-traumatic stress after coming into physical contact with a decomposing body and the other for jumping over a wall in a foot pursuit and falling 10 feet on the other side. Affirmed.
Court: New York Appellate Divisions, Judge: McShan, Filed On: August 3, 2023, Case #: 534978, Categories: Social Security, Tort
J. McShan finds that the lower court properly convicted defendant, the former head of a municipal group working to protect Lake George, of grand larceny, scheme to defraud, and offering a false instrument for filing. Trial evidence established that defendant schemed over several years to submit invoices for projects from grants awarded to member municipalities but retained the money by blaming bureaucratic delays. Defendant was properly ordered to pay restitution to various groups and government entities. Affirmed.
Court: New York Appellate Divisions, Judge: McShan, Filed On: July 27, 2023, Case #: 112140, Categories: Theft, Restitution
J. McShan finds that a former state corrections captain was improperly fired from his job after an investigation into alleged criminal conduct at a training academy revealed he used his cellphone to exchange sexually explicit texts while on duty. Although the evidence established his conduct distracted him from work and reflected poorly on his employer, termination was too harsh a penalty. On remand, a less severe penalty should be considered. Vacated.
Court: New York Appellate Divisions, Judge: McShan, Filed On: July 27, 2023, Case #: 535544, Categories: Employment
J. McShan finds that the lower court properly dismissed a father's request to hold a mother in willful violation of a prior order for twice weekly telephone calls with their son. The boy's reluctance to speak with his father, who lived in Ohio, did not suggest that the mother interfered with the calls, and neither parent willfully dragged their feet to arrange ordered therapeutic counseling between the boy and the father. Affirmed.
Court: New York Appellate Divisions, Judge: McShan, Filed On: July 20, 2023, Case #: 535404, Categories: Family Law
J. McShan finds that the lower court properly annulled the town planning board's decision to reject a drive-thru restaurant at a busy intersection because the board's constant citation of traffic impacts was "conclusory and unsupported" in light of reports from experts and state highway officials that dispelled the concern. Affirmed.
Court: New York Appellate Divisions, Judge: McShan, Filed On: July 6, 2023, Case #: 535737, Categories: Zoning, Experts
J. McShan finds that the lower court properly reinstated spousal support for the wife. In the divorce judgment, the parties agreed to maintenance and child support and only allowed modifying the former if extreme hardship could be demonstrated. Affirmed in part.
Court: New York Appellate Divisions, Judge: McShan, Filed On: July 6, 2023, Case #: CV-22-2062, Categories: Family Law
J. McShan finds that the lower court properly convicted defendant based on his guilty plea to robbery. Defendant contradicted the charged crime by stating during plea allocution that no one possessed a pistol during the incident in question, but subsequent questioning rendered his plea voluntary by establishing all of the factual elements of robbery. Affirmed.
Court: New York Appellate Divisions, Judge: McShan, Filed On: June 29, 2023, Case #: 112178, Categories: Robbery, Plea
[Consolidated.] J. McShan finds that the lower court properly dismissed due process claims brought against court personnel involved in plaintiff's sexual abuse conviction and appeal. The presiding judge had immunity concerning his methods for conducting trial, and the clerk who transcribed the trial had not received appropriate service, as she had retired. Affirmed.
Court: New York Appellate Divisions, Judge: McShan, Filed On: June 22, 2023, Case #: 535761, Categories: Immunity, Due Process
J. McShan finds that the lower court properly declined to dismiss medical malpractice claims brought after plaintiff developed an eye infection over a long holiday weekend because plaintiff's medical experts raised triable issues as to whether advice his regular provider gave over the phone met the standard of care and whether plaintiff received an adequate exam in the emergency room. Affirmed.
Court: New York Appellate Divisions, Judge: McShan, Filed On: June 22, 2023, Case #: 534856, Categories: Experts, Medical Malpractice
J. McShan finds that the lower court properly held that the state was liable for the actions of two corrections officers who humiliated a prison inmate during a mandatory strip-frisk by having him handle his genitals and buttocks then run his fingers over his gums. While the state argued the guards' actions were motivated by personal animus, they followed work protocols in processing the inmate. Affirmed.
Court: New York Appellate Divisions, Judge: McShan, Filed On: June 15, 2023, Case #: 534706, Categories: Prisoners' Rights
J. McShan finds that the lower court properly terminated a mother's parental rights to her two children based on findings of permanent neglect. The mother failed to plan for the future of her children by refusing to accept treatment for various mental health issues arranged by social service providers, and she downplayed these issues as mere anxiety. Affirmed.
Court: New York Appellate Divisions, Judge: McShan, Filed On: June 8, 2023, Case #: 532234, Categories: Family Law