1,811 results for 'court:"New York Appellate Divisions"'.
[Consolidated.] J. Garry finds that the lower court properly held both parties at fault concerning a usurious private loan that had been induced by fraud because evidence indicated the borrower had no intention of paying back the lender and that the lender fashioned a separate consulting agreement that pushed the loan's interest rate into usurious territory. The court did not abuse its discretion in ordering that the $200,000 loan be repaid but at a statutory interest rate of 9%. Affirmed.
Court: New York Appellate Divisions, Judge: Garry, Filed On: April 18, 2024, Case #: CV-22-2152, Categories: Fraud, Banking / Lending, Contract
J. Reynolds Fitzgerald finds that an opinion should be vacated in dismissing an appeal on grounds that plaintiff, a roofer, had not been aggrieved by the workers' compensation board's decision that apportionment did not apply to his claims, as substantial evidence supported the rejection of apportionment percentages as set by a physician who reviewed plaintiff's medical records. Affirmed.
Court: New York Appellate Divisions, Judge: Reynolds Fitzgerald, Filed On: April 18, 2024, Case #: 535730, Categories: Workers' Compensation
Per curiam, the appellate division finds that the lower court improperly denied the rear-ended driver's motion for summary judgment on the issue of liability. A rear-end collision with a stopped vehicle presents a presumption that the driver of the rear vehicle was negligent and the defendant bus driver presented no evidence to show the stopped driver was culpable for the accident. Reversed.
Court: New York Appellate Divisions, Judge: Per curiam, Filed On: April 18, 2024, Case #: 02103, Categories: Vehicle
J. Clark finds that the lower court properly held the county responsible for poor road conditions that caused a motorcyclist to be thrown from his bike after losing control of the vehicle. The motorcyclist may have been convicted of DUI, but driving while intoxicated had not been the proximate cause of his injuries, as his traveling companions also had problems controlling their bikes on the same stretch of roadway. Affirmed in part.
Court: New York Appellate Divisions, Judge: Clark, Filed On: April 18, 2024, Case #: 535621, Categories: Tort, Vehicle
Per curiam, the appellate division finds that the lower court properly convicted defendant based on his guilty plea to vehicular assault for injuring a child as passenger while driving under the influence of drugs. Defendant contends his sentence was harsh, but the underlying offense was serious, and he was a second felony offender. Affirmed.
Court: New York Appellate Divisions, Judge: Per curiam, Filed On: April 18, 2024, Case #: 112913, Categories: Sentencing, Dui
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Per curiam, the appellate division finds that defendant was properly convicted based on his guilty plea to rape for engaging in sexual activity with an 11-year-old relative. Defendant challenged the imposition of the maximum term of probation, but the record indicates he failed to fully accept responsibility for the crime, insisting he was protecting a young girl who was "overly hormonal" and "super aggressive sexually." Affirmed.
Court: New York Appellate Divisions, Judge: Per curiam, Filed On: April 18, 2024, Case #: 113103, Categories: Sentencing, Child Victims
Per curiam, the appellate division finds that the lower court properly resentenced defendant for attempted robbery. Defendant contends the sentence was harsh, but his sentence should not be reduced in the interest of justice based on the fact that he admitted guilt and suffered mental health issues, as his criminal history was extensive and he had discharged a gun on a public street to prevent recovery of property he stole. Affirmed.
Court: New York Appellate Divisions, Judge: Per curiam, Filed On: April 18, 2024, Case #: 113492, Categories: Robbery, Sentencing
Per curiam, the appellate division finds that the lower court properly dismissed an inmate's request to compel recalculation of two sentences to run concurrently. Defendant was serving time for a previous crime when he was sentenced as a second felony offender for a new crime, and thus the law required that the sentences run consecutively. Affirmed.
Court: New York Appellate Divisions, Judge: Per curiam, Filed On: April 18, 2024, Case #: CV-23-0814, Categories: Sentencing
Per curiam, the appellate division finds that an inmate was properly found guilty of violating prison rules by making a violent threat against staff during a telephone call because the finding was supported by the recording of the call as submitted for in camera review, along with the misbehavior report and hearing testimony. Affirmed.
Court: New York Appellate Divisions, Judge: Per curiam, Filed On: April 18, 2024, Case #: CV-23-1809, Categories: Evidence, Prisoners' Rights
Per curiam, the appellate division finds that the decision to stay an investigation into the conduct of attorney Randel Scharf should be vacated. Scharf was suspended in September 2023 until further order, but the Otsego County Bar Association was named limited custodian of his client files when the investigation was stayed. The bar group subsequently provided status reports to the court, which lifted the stay on its own motion after deliberations.
Court: New York Appellate Divisions, Judge: Per curiam, Filed On: April 18, 2024, Case #: PM-67-24, Categories: Civil Procedure, Attorney Discipline
J. Reynolds Fitzgerald finds that the lower court properly declined to dismiss claims brought against the owner of a ski resort after a teenager sustained injury on a black-diamond trail, which she chose to use when easier trails were closed. The resort cited the doctrine of assumption of risk, but questions of fact remain unresolved as to which trails had been open, which may have unreasonably enhanced risk. Affirmed.
Court: New York Appellate Divisions, Judge: Reynolds Fitzgerald, Filed On: April 18, 2024, Case #: CV-23-1379, Categories: Negligence
J. Shulman finds that the lower court properly found that a couple cannot sue a fertility clinic for medical malpractice for the failure to properly store their embryos. However, the couple's negligence claims are reinstated, as experts presented conflicting testimony regarding the potential impact of the cryopreservation process on the embryos. It is up for a jury to determine whether the embryos were already in poor condition when preserved, or if the clinic allowed them to degrade. Reversed in part.
Court: New York Appellate Divisions, Judge: Shulman, Filed On: April 18, 2024, Case #: 02088, Categories: Health Care, Negligence, Medical Malpractice
Per curiam, the appellate division finds that the lower court properly found for the insurer in a suit seeking damages for business losses due to the store's inability to use its premises during the Covid-19 pandemic. The store cannot show that a physical loss occurred in order to trigger coverage under the policy. Affirmed.
Court: New York Appellate Divisions, Judge: Per curiam, Filed On: April 18, 2024, Case #: 02091, Categories: Insurance, Covid-19, Contract
Per curiam, the appellate division finds that attorney Scott Pinsky of California may resign from the New York bar for nondisciplinary reasons. His request was initially opposed since he was not current on registration requirements, but Pinsky supplied a supplemental affidavit demonstrating compliance.
Court: New York Appellate Divisions, Judge: Per curiam, Filed On: April 18, 2024, Case #: PM-68-24, Categories: Attorney Discipline
J. Egan finds that the lower court properly denied plaintiff coverage for water damage caused by a burst radiator pipe in an empty home he had listed for sale. Plaintiff failed to overcome the policy exclusion for frozen pipes in residences that are either vacant, unoccupied, or under construction, since two of the three provisions applied, and he also failed to take measures to shut off the water before leaving on an extended overseas trip. Affirmed.
Court: New York Appellate Divisions, Judge: Egan, Filed On: April 18, 2024, Case #: CV-23-0362, Categories: Insurance
Per curiam, the appellate division finds that the lower court properly convicted defendant based on his guilty pleas to drug possession in two indictments. Defendant contends the concurrent parts of his sentence were harsh, but he secured a "highly advantageous" plea agreement despite having an extensive criminal history. Affirmed.
Court: New York Appellate Divisions, Judge: Per curiam, Filed On: April 18, 2024, Case #: 112056, Categories: Drug Offender, Sentencing, Plea
Per curiam, the appellate division finds that the lower court properly convicted defendant based on his guilty plea to robbery for forcibly taking a wallet from a woman outside a store, as defendant's claim that his sentence was harsh was precluded by his valid appeal waiver. Affirmed.
Court: New York Appellate Divisions, Judge: Per curiam, Filed On: April 18, 2024, Case #: 113230, Categories: Robbery, Sentencing, Plea
Per curiam, the appellate division finds that the lower court improperly denied the police officer's petition to serve a late notice of claim on the city in a slip and fall suit. The officer's line-of-duty injury report provided the city timely notice of the essential facts constituting the claim. Reversed.
Court: New York Appellate Divisions, Judge: Per curiam, Filed On: April 17, 2024, Case #: 02058, Categories: Civil Procedure, Tort
Per curiam, the appellate division finds that the lower court properly denied the summer camp's motion to dismiss claims that a camper was sexually abused by a coach while attending football camp in the 1970s. The camper was a resident of New York at the time of the alleged abuse, so he can avail himself of the extended statute of limitations under the Child Victims Act even if the camp was located in Vermont and Massachusetts. Affirmed.
Court: New York Appellate Divisions, Judge: Per curiam, Filed On: April 17, 2024, Case #: 02074, Categories: Tort, Jurisdiction
J. Miller finds that the lower court properly denied the insurer's motion to dismiss fraud claims based on its alleged sale of an unlawful workers' compensation insurance program based on a forum-selection clause. The forum selection clause of an illegal insurance policy is not enforceable, and New York companies cannot be forced to litigate in Nebraska to vindicate their rights. Affirmed.
Court: New York Appellate Divisions, Judge: Miller, Filed On: April 17, 2024, Case #: 02032, Categories: Fraud, Insurance, Jurisdiction
Per curiam, the appellate division finds that the lower court properly found for Swarovski in a trip and fall suit stemming from a woman's fall over a sign on the sidewalk outside the Brooklyn Museum of Art advertising a fashion event sponsored by the jewelry company. There is no evidence Swarovski had any control or occupancy of the property abutting the sidewalk where the accident occurred. Affirmed.
Court: New York Appellate Divisions, Judge: Per curiam, Filed On: April 17, 2024, Case #: 02062, Categories: Tort, Negligence
J. Brathwaite Nelson finds that the lower court properly considered defendant's prior juvenile delinquency adjudication from New Jersey in determining his sex offender risk level designation. Precedent does not permit consideration of prior juvenile delinquency adjudications out of New York, but New Jersey does not have a comparable proscription on the use of its juvenile delinquency adjudications. Affirmed.
Court: New York Appellate Divisions, Judge: Brathwaite Nelson, Filed On: April 17, 2024, Case #: 02071, Categories: Sentencing, Sex Offender
Per curiam, the appellate division finds that the lower court improperly granted the patient $1.25 million in damages for emotional distress in a medical malpractice suit stemming from a doctor's recommendation she be treated with methotrexate, a drug used to terminate ectopic pregnancies, without ordering a follow-up ultrasound. This treatment required the patient to abort her baby due to the potentially devastating effects of the drug. While there is evidence to support the jury's finding of medical malpractice, resulting in a $250,000 award for pain and suffering, the $1.2 million emotional distress award is excessive. Reversed in part.
Court: New York Appellate Divisions, Judge: Per curiam, Filed On: April 17, 2024, Case #: 02080, Categories: Damages, Medical Malpractice
Per curiam, the appellate division finds that the lower court improperly granted the patient $1.25 million in damages for emotional distress in a medical malpractice suit stemming from a doctor's recommendation she be treated with methotrexate, a drug used to terminate ectopic pregnancies, without ordering a follow-up ultrasound. This treatment required the patient to abort her baby due to the potentially devastating effects of the drug. While there is evidence to support the jury's finding of medical malpractice, resulting in a $250,000 award for pain and suffering, the $1.2 million emotional distress award is excessive. Reversed in part.
Court: New York Appellate Divisions, Judge: Per curiam, Filed On: April 17, 2024, Case #: 02080, Categories: Damages, Medical Malpractice
Per curiam, the appellate division finds that the lower court properly found for the insurer in a suit seeking indemnification for a bodily injury suit arising from unloading property from a vehicle. The injured worker in the underlying suit fell when a co-worker dropped an iron beam they were unloading from a truck, so the policy's auto exclusion applies. Affirmed.
Court: New York Appellate Divisions, Judge: Per curiam, Filed On: April 16, 2024, Case #: 02030, Categories: Insurance, Indemnification
Per curiam, the appellate division finds that the lower court improperly granted the apartment rental agency's motion to vacate a default judgment against it. It failed to establish a reasonable excuse for its default when the subject withdrawal order was properly served on its agent. Reversed.
Court: New York Appellate Divisions, Judge: Per curiam, Filed On: April 16, 2024, Case #: 02028, Categories: Civil Procedure
Per curiam, the appellate division finds that the lower court properly dismissed the woman's personal injury suit against the housing authority. While the statute of limitations to file was tolled as a result of the Covid-19 pandemic, she still filed suit almost three months past the tolled deadline. Affirmed.
Court: New York Appellate Divisions, Judge: Per curiam, Filed On: April 16, 2024, Case #: 02010, Categories: Civil Procedure, Tort, Covid-19