60 results for 'judge:"McShan"'.
J. McShan finds that the lower court improperly dismissed claims brought after a bicyclist was hit by a car while exiting a bike path. The cyclist admitted he failed to make a full stop at a stop sign located on the path before he entered the intersection, but questions of fact remain unresolved as to whether the driver should have seen the bicyclist as she made a left-hand turn. Reversed.
Court: New York Appellate Divisions, Judge: McShan, Filed On: May 2, 2024, Case #: CV-23-1540, Categories: Vehicle, Negligence
J. McShan finds that the workers' compensation board properly awarded benefits to a health care aide after determining her head, neck, and arm injuries had been job-related because, while no one witnessed the aide fall inside the home of a patient, she had been found there unconscious and bleeding. Affirmed.
Court: New York Appellate Divisions, Judge: McShan, Filed On: April 25, 2024, Case #: CV-23-0221, Categories: Workers' Compensation
J. McShan finds that the lower court properly denied a father's objections to the decision dismissing petitions seeking to suspend child support payments after he was laid off from a second job and underwent a medical emergency because the father offered few specifics concerning his purported loss of income and did not make sufficient efforts to find new employment matching his skills. He also failed to detail how the leg injury that comprised the "medical emergency" interfered with finding work based on his background as an accountant. Affirmed.
Court: New York Appellate Divisions, Judge: McShan, Filed On: April 11, 2024, Case #: CV-23-0055, Categories: Family Law
J. McShan finds that the lower court properly dismissed a father's request for custody of his child after the mother's relocation to California was approved after the fact, but he should be given additional parenting time as a result. Returning to the mother's home state provided a safer and more supportive home environment for the child at a time when the father struggled with substance abuse, but given the travel distance, the father should receive additional weekends in California each month and more time in New York during summer school vacations. Meanwhile, remand is required to set the amount each party should contribute to travel costs relative to their financial circumstances. Affirmed in part.
Court: New York Appellate Divisions, Judge: McShan, Filed On: April 4, 2024, Case #: 536095, Categories: Family Law
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J. McShan finds that the lower court properly rejected claims contending a state official's failure to enforce local building codes caused tenants to be forced from their apartments when their landlord ignored repair orders. By law, the official was required to "promulgate rules and regulations" setting minimum statewide standards for building and fire safety, but enforcement is left to New York municipalities. Affirmed.
Court: New York Appellate Divisions, Judge: McShan, Filed On: March 28, 2024, Case #: CV-22-2099, Categories: Landlord Tenant, Municipal Law
J. McShan finds that the workers' compensation board properly held that an employer could not challenge 24-hour home health care for a construction worker who suffered a catastrophic job injury because the level of assistance had been litigated, and, absent an improvement in his conditions, the employer could not seek to reduce coverage to 16 hours daily. Affirmed.
Court: New York Appellate Divisions, Judge: McShan, Filed On: March 21, 2024, Case #: CV-22-2295, Categories: Workers' Compensation
J. McShan finds that the workers' compensation board properly held that a claimant's failure to attend independent medical examinations for his back injury was unreasonable. While the employer-requested exam was scheduled for a location an hour away by car, the claimant's visits to his treating physician required that he travel an even farther distance, meaning the exam trip was not burdensome. Affirmed.
Court: New York Appellate Divisions, Judge: McShan, Filed On: March 14, 2024, Case #: CV-22-2040, Categories: Workers' Compensation
J. McShan finds that the lower court improperly dismissed the environmental groups' challenge to the approval of a plan transferring ownership of a gas-fired cogeneration plant to a company seeking to power a cryptocurrency mining operation. The groups have standing since they demonstrated that members who live near the plant come from "disadvantaged communities" cited in climate legislation aimed toward protecting them from harmful emissions. Meanwhile , completion of the transfer and associated construction did not moot the challenge by ending the controversy. Reversed.
Court: New York Appellate Divisions, Judge: McShan, Filed On: March 7, 2024, Case #: CV-23-0689, Categories: Civil Procedure, Energy, Environment
J. McShan finds that defendant was properly convicted of criminal sexual act and course of sexual conduct against a child for allegedly performing oral sex on five boys each under the age of 13 over a protracted period because the weight of the evidence supported the verdict, including testimony from the boys and defendant's own confessions. Affirmed.
Court: New York Appellate Divisions, Judge: McShan, Filed On: March 7, 2024, Case #: 110875, Categories: Evidence, Sex Offender, Child Victims
J. McShan finds that plaintiff was properly denied survivor benefits under her ex-husband's state retirement plan even though the settlement provision of divorce designated her beneficiary of his pension upon retirement. The husband improperly named his subsequent wife the payment option beneficiary, but plaintiff needed to acquire a court order to alter that selection. Affirmed.
Court: New York Appellate Divisions, Judge: McShan, Filed On: March 7, 2024, Case #: 535948, Categories: Family Law, Social Security
[Consolidated.] J. McShan finds that the lower court properly convicted defendant based on his guilty plea to weapon possession. After going through four attorneys and bringing pro so motions as well, defendant contends counsel was ineffective for failing to challenge the search warrant that led to the discovery of a loaded handgun at his home, but his claims constituted nothing more than disagreement over strategy. Affirmed.
Court: New York Appellate Divisions, Judge: McShan, Filed On: February 29, 2024, Case #: 109578, Categories: Firearms, Ineffective Assistance, Plea
J. McShan finds that the lower court properly held that extraordinary circumstances justified granting a grandmother sole legal and physical custody of her grandchild because she demonstrated that the child had lived with her for more than three years without the involvement of the mother and father, and she served the child's best interests by developing a plan with specialists to address educational and behavioral needs. Affirmed.
Court: New York Appellate Divisions, Judge: McShan, Filed On: February 22, 2024, Case #: CV-23-0283, Categories: Family Law
J. McShan finds that the lower court properly declined to vacate default judgment in a dispute over installation of a modular home because the court did not abuse its discretion in determining that the installers lacked a reasonable excuse for failing to appear after being put on notice that litigation would be initiated and default could occur if they failed to respond. Affirmed.
Court: New York Appellate Divisions, Judge: McShan, Filed On: February 22, 2024, Case #: CV-23-0995, Categories: Civil Procedure, Contract
J. McShan finds that the workers' compensation board properly held that a bridal shop seamstress suffered a compensable injury in contracting Covid-19 on the job because evidence indicated she was exposed to the virus in the course of interactions and overlapping shifts with a coworker who tested positive, which her employer failed to rebut by waiving the right to obtain an independent medical exam. Affirmed.
Court: New York Appellate Divisions, Judge: McShan, Filed On: February 15, 2024, Case #: CV-23-0298, Categories: Covid-19, Workers' Compensation
J. McShan finds that the lower court properly convicted defendant following his guilty plea to criminally negligent homicide in a fatal drug overdose. The superior court information that charged him was not jurisdictionally defective because it included reference to the section of penal law involved and used specific language in outlining the alleged crime of negligently causing a person's death. Affirmed.
Court: New York Appellate Divisions, Judge: McShan, Filed On: February 8, 2024, Case #: 110666, Categories: Plea, Negligent Homicide
J. McShan finds that a city police sergeant was properly terminated for a pattern of misconduct that included workplace violence, discrimination, and sexual harassment. The officer contends bias played a part when he was fired by the mayor, who also served as public safety commissioner, but the mayor had been new to both jobs and had little involvement in the proceedings before reviewing the recommendations of a hearing officer, at which point he made his own credibility determinations. Meanwhile, termination did not constitute disproportionate punishment even though it had not been recommended by the hearing officer. Affirmed.
Court: New York Appellate Divisions, Judge: McShan, Filed On: February 1, 2024, Case #: 535654, Categories: Employment
J. McShan finds that the lower court improperly convicted defendant based on his Alford plea to attempted kidnapping of two underage girls he and codefendant picked up while driving from Missouri to New York and back, leaving them in Ohio. Defendant made the plea based on the promise that he could challenge the preclusion of the defense that he had not known the girls' ages, but since conditional pleas are generally not accepted in New York, the matter must be remitted. Reversed.
Court: New York Appellate Divisions, Judge: McShan, Filed On: January 25, 2024, Case #: 112832, Categories: Sex Offender, Plea, Kidnapping
J. McShan finds that the lower court properly declined to vacate an arbitrator's finding that a state parole officer should be terminated for misconduct. In considering the officer's time records, the arbitrator did not exceed his authority under the union contract or impinge a separate grievance the union brought against the state's system of recording time on the job. Affirmed.
Court: New York Appellate Divisions, Judge: McShan, Filed On: January 11, 2024, Case #: CV-22-2153, Categories: Arbitration, Labor / Unions
J. McShan finds that the lower court properly dismissed sexual abuse claims brought under the Child Victims Act in which plaintiff alleged negligent hiring and retention of a social services caseworker subsequently convicted of sex crimes because evidence did not indicate the county knew or should have known the caseworker had a propensity to commit acts of sexual misconduct. Affirmed.
Court: New York Appellate Divisions, Judge: McShan, Filed On: January 11, 2024, Case #: CV-22-2059, Categories: Employment, Negligence
[Consolidated.] J. McShan finds that the lower court properly dismissed plaintiff's action to quiet title to a parcel once part of a his family's massive farmland holdings but which a brother sold to a neighbor after receiving it in an intra-family settlement. Deed descriptions contained in the chain of title were unambiguous, which allowed a surveyor to establish the parcel's western and southern borders. Affirmed.
Court: New York Appellate Divisions, Judge: McShan, Filed On: January 4, 2024, Case #: 535248, Categories: Property
J. McShan finds that the lower court properly dismissed insurance contract claims brought after a fire destroyed plaintiff's home. The payout he received for the loss of the home and personal property nearly hit the coverage limits, and plaintiff failed to demonstrate the insurer had been at fault for delays that increased rebuilding costs. Affirmed.
Court: New York Appellate Divisions, Judge: McShan, Filed On: December 28, 2023, Case #: 534972, Categories: Insurance
J. McShan finds that the lower court properly terminated a father's parental rights after finding he abandoned his child, who had been placed in foster care soon after birth for testing positive for drugs, because the father failed to establish regular contact with the child after being released from incarceration. Affirmed.
Court: New York Appellate Divisions, Judge: McShan, Filed On: December 21, 2023, Case #: CV-23-0321, Categories: Family Law
J. McShan finds that the lower court improperly denied defendant resentencing for convictions of manslaughter, assault, and possessing a weapon, which arose after she stabbed her live-in paramour in the back with a butcher knife. Even though evidence indicated defendant herself could become abusive, she established she was a victim of recurring domestic violence.
Court: New York Appellate Divisions, Judge: McShan, Filed On: December 21, 2023, Case #: 113247, Categories: Sentencing, Domestic Violence
J. McShan finds that the lower court improperly convicted defendant based on his guilty plea to rape involving a child because the agreement to waive indictment and prosecute by superior court information was jurisdictionally defective since such is not permitted when the crime involves a class A felony punishable by life imprisonment. Reversed.
Court: New York Appellate Divisions, Judge: McShan, Filed On: December 21, 2023, Case #: 113189, Categories: Criminal Procedure, Sex Offender, Plea
J. McShan finds that the workers' compensation board properly held that claimant was precluded from receiving additional indemnity benefits. The original claim had been amended twice to include consequential injuries, but the claim had been closed, while the date of the last payment had been too remote from the date of injury. Affirmed.
Court: New York Appellate Divisions, Judge: McShan, Filed On: December 14, 2023, Case #: 535725, Categories: Civil Procedure, Workers' Compensation
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