54 results for 'judge:"Garry"'.
J. Garry finds that the lower court properly convicted defendant of burglary, criminal trespass, rape, and obstruction of breathing or circulation for repeatedly entering the apartment of his former paramour, forcing her to have sex, and applying pressure to her throat. Defendant contends evidence of forcible compulsion was insufficient to support the rape count, but the victim testified about verbal abuse and physical violence leading up to the assault; that she feared defendant; and that she had not consented to sex. Affirmed.
Court: New York Appellate Divisions, Judge: Garry, Filed On: May 9, 2024, Case #: 112842, Categories: Burglary, Sex Offender
J. Garry finds that the lower court properly modified a shared parenting order to award sole legal and physical custody to the father because repeated unfounded claims that the father sexually abused the child subjected the girl to intrusive exams over several years, and the mother demonstrated lack of fitness to act as custodial parent by otherwise interfering with the father-daughter relationship. Affirmed.
Court: New York Appellate Divisions, Judge: Garry, Filed On: May 2, 2024, Case #: CV-23-0081, Categories: Family Law
J. Garry finds that the workers' compensation board properly disallowed a benefits claim after determining a warehouse associate had not suffered a job-related occupational disease. The associate contends he performed repetitive motions in lifting, reaching, and squatting, but he offered insufficient medical evidence to establish a causal relationship between his injuries and a distinctive feature of the job. Affirmed.
Court: New York Appellate Divisions, Judge: Garry, Filed On: April 25, 2024, Case #: CV-23-0563, Categories: Workers' Compensation
[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. Garry finds that the lower court properly convicted defendant based on his guilty plea to attempted weapon possession for his involvement in a street shooting. Defendant objected to providing a buccal swab, but the sampling was unobtrusive and the prosecution already had DNA linking the shooter to a vehicle driven by defendant, as well to a firearm recovered from the scene. Affirmed.
Court: New York Appellate Divisions, Judge: Garry, Filed On: April 11, 2024, Case #: 113054, Categories: Dna, Evidence, Weapons
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J. Garry finds that the lower court properly dismissed medical malpractice claims brought after thyroid removal surgery paralyzed a patient's left vocal cord. The surgeon failed to discuss partial removal, which he considered inadvisable, as an alternative, but he provided sufficient information for a "reasonably prudent person" to possess advised consent. Affirmed.
Court: New York Appellate Divisions, Judge: Garry, Filed On: April 11, 2024, Case #: 535660, Categories: Medical Malpractice
J. Garry finds that a city police officer was improperly denied performance of duty and accidental disability retirement benefits under the state and local retirement system because an "accident" occurred when a rolling chair was slammed into the back of his chair at work, and the resulting anxiety and post-traumatic stress permanently incapacitated him from taking on light-duty assignments since working there triggered a psychological reaction. Reversed.
Court: New York Appellate Divisions, Judge: Garry, Filed On: April 4, 2024, Case #: CV-23-0235, Categories: Employment, Social Security
[Consolidated.] J. Garry finds that the lower court should have suppressed cocaine and heroin discovered in a strip search in his trial for possessing drugs because he had been subjected to an unlawful body cavity search in which drugs had been pulled from his rectum, an intrusion that had not been specified in the warrant. Meanwhile, exigent circumstances did not exist. Reversed.
Court: New York Appellate Divisions, Judge: Garry, Filed On: April 4, 2024, Case #: 112053, Categories: Drug Offender, Search
J. Garry finds that the lower court properly convicted defendant based on his guilty plea to criminal sexual act against two children. Defendant sought to withdraw his plea on grounds of duress, but during the plea colloquy he denied being threatened or coerced into pleading guilty. Affirmed.
Court: New York Appellate Divisions, Judge: Garry, Filed On: March 28, 2024, Case #: 111551, Categories: Sex Offender, Plea, Child Victims
J. Garry finds that a police officer was properly denied accidental disability retirement benefits for a knee injury sustained when he fell while dismounting a bike to chase a suspect during a training exercise because the injury occurred during routine training included in regular job duties and thus did not constitute an accident. Affirmed.
Court: New York Appellate Divisions, Judge: Garry, Filed On: March 21, 2024, Case #: CV-23-1359, Categories: Employment, Social Security, Tort
J. Garry finds that the lower court properly granted a homeowners' association dismissal of objections to an assessment for replacing a deteriorated harbor without a vote from association members because opting for a per-unit charge was within the association's purview, as the bylaws specifically allow for maintenance assessments to pay for harbor repair and replacement. Affirmed.
Court: New York Appellate Divisions, Judge: Garry, Filed On: March 7, 2024, Case #: CV-22-2334, Categories: Property, Contract
J. Garry finds that the lower court properly dismissed dental malpractice claims stemming from a root canal because the patient filed the action more than two-and-a-half years following accrual, and she also exceeded additional time permitted following discovery of a foreign object in her left maxillary sinus. However, the dentist and her employer were improperly awarded disbursements without proof that expenses were actually incurred. Affirmed in part.
Court: New York Appellate Divisions, Judge: Garry, Filed On: February 22, 2024, Case #: 535783, Categories: Civil Procedure, Medical Malpractice
J. Garry finds that the lower court should have permanently sealed records concerning an application to change a minor child's name and sex designation because recent amendments to state civil rights law require that proceedings related to changes in sex designation be immediately sealed. Some discretion is permitted in requests to seal name changes, but a public interest would not be served by declining to seal the record at issue to preserve the minor's safety. Reversed.
Court: New York Appellate Divisions, Judge: Garry, Filed On: February 22, 2024, Case #: CV-23-0596, Categories: Civil Rights, Lgbtq
J. Garry finds that the lower court properly dismissed defendant's claim seeking immediate release from prison on grounds that he earned a certificate of eligibility for parole upon graduating from a shock incarceration program because defendant received a prior indeterminate sentence. Affirmed.
Court: New York Appellate Divisions, Judge: Garry, Filed On: February 15, 2024, Case #: CV-23-0351, Categories: Parole
J. Garry finds that the lower court properly convicted defendant based on his guilty plea to attempted burglary. Defendant failed to preserve claims challenging the voluntariness of his plea and contending he received ineffective assistance, and he failed to seek to withdraw the plea. Affirmed.
Court: New York Appellate Divisions, Judge: Garry, Filed On: February 15, 2024, Case #: 112261, Categories: Ineffective Assistance, Plea
J. Garry finds that an adjunct music professor at a college was properly disqualified from receiving unemployment benefits on grounds that she left her job without good cause because she failed to meet the school's requirement that she receive a Covid-19 vaccination before in-person instruction commenced anew following a period of remote teaching, and she failed to provide documentation indicating she had been relieved of the mandate after she contracted Covid and tested positive for antibodies. Affirmed.
Court: New York Appellate Divisions, Judge: Garry, Filed On: February 15, 2024, Case #: CV-23-0885, Categories: Employment, Covid-19
J. Garry finds that the lower court properly rejected a challenge to the decision approving subdivision of a property in a protected mountain area. The property owner, a trained biologist and forestry professional, performed his own environmental analysis, and a consulting professional engineer conducted review. Meanwhile, plaintiffs had standing since two plaintiffs lived close to the affected area. Affirmed.
Court: New York Appellate Divisions, Judge: Garry, Filed On: February 1, 2024, Case #: CV-22-2337, Categories: Environment, Property
J. Garry finds that the lower court properly dismissed a telecommunications firm's challenge to the finding that its real property was taxable because state law allows localities to tax fiber-optic cables and conduits used for internet, telephone, and cable TV services as "public utility mass real property," unless the cable is primarily used for news and entertainment. Here, the firm failed to establish such. Affirmed.
Court: New York Appellate Divisions, Judge: Garry, Filed On: January 25, 2024, Case #: 535951, Categories: Property, Tax
J. Garry finds that the lower court properly convicted defendant on his guilty plea to drug possession. Defendant's appeal waiver, initially invalid but revisited before sentencing to make it valid in light of new precedent, precluded his challenge to a denied suppression motion. Affirmed.
Court: New York Appellate Divisions, Judge: Garry, Filed On: January 18, 2024, Case #: 112339, Categories: Drug Offender, Plea
J. Garry finds that the lower court properly declined to dismiss claims contending farm property had been fraudulently transferred between family members because documentary evidence presented by a nephew and his wife demonstrated that returned ownership to his uncle during the pendency of their divorce was intended to be temporary to ensure the farm stayed in the family, but that the uncle used the event to discharge their purchase money mortgage and retake ownership. Affirmed.
Court: New York Appellate Divisions, Judge: Garry, Filed On: January 11, 2024, Case #: 536190, Categories: Fraud, Property
J. Garry finds that the lower court properly convicted defendant of arson and criminal mischief after a fire was set at his then-girlfriend's home following a dispute they had at a restaurant in light of circumstantial evidence that included the parties' text messages and eyewitness testimony placing defendant at her home before the fire. Affirmed.
Court: New York Appellate Divisions, Judge: Garry, Filed On: January 4, 2024, Case #: 113387, Categories: Evidence, Arson
J. Garry finds that the lower court improperly denied a husband's request to vacate custodial provisions contained in two stipulations of settlement and the judgment of divorce. The husband failed to support claims contending the wife's attorney and/or the judge coerced him to accept stipulations, but vacatur requests should not have been denied on procedural grounds; rather, the court should have entertained allowing the husband to correct any errors. Reversed.
Court: New York Appellate Divisions, Judge: Garry, Filed On: December 21, 2023, Case #: 535607, Categories: Civil Procedure, Family Law
J. Garry finds that the lower court properly sentenced defendant based on his guilty plea to murder in a fatal stabbing. Although defendant's substance abuse and mental health issues constituted mitigating factors, the negotiated sentence fell below the permissible maximum. Affirmed.
Court: New York Appellate Divisions, Judge: Garry, Filed On: December 14, 2023, Case #: 112824, Categories: Murder, Sentencing, Plea
[Consolidated.] J. Garry finds that the workers' compensation board properly disallowed claims in which a mason sought benefits after a rooftop slip-and-fall accident rendered him paraplegic because documentary evidence indicated the mason was a partner in the firm rather than an employee of the chimney company and thus excluded from coverage by law. Affirmed.
Court: New York Appellate Divisions, Judge: Garry, Filed On: December 7, 2023, Case #: 535748, Categories: Employment, Workers' Compensation
J. Garry finds that the workers' compensation board properly barred an employee from receiving further benefits after finding she failed to obtain consent before settling a third-party action for injuries sustained in a job-related car accident, as while the action was subsequently discontinued, the record does not indicate she possessed the requisite consent to enter a settlement. However, evidence did not support the finding that she made willful misrepresentations to receive benefits. Affirmed in part.
Court: New York Appellate Divisions, Judge: Garry, Filed On: November 30, 2023, Case #: 535150, Categories: Workers' Compensation
J. Garry finds that the workers' compensation board improperly disallowed a transit worker's claims contending she suffered post-traumatic stress disorder after being verbally threatened at her booth without explaining the decision that a compensable accident had not occurred, especially since the employer initially accepted her injury claim. Reversed.
Court: New York Appellate Divisions, Judge: Garry, Filed On: November 30, 2023, Case #: 535513, Categories: Workers' Compensation
J. Garry finds that the lower court improperly convicted defendant of aggravated vehicular homicide, vehicular manslaughter, driving while intoxicated, and leaving the scene of an accident because the prosecution failed to disclose questions an expert raised concerning accident reconstruction methods. Reversed.
Court: New York Appellate Divisions, Judge: Garry, Filed On: November 22, 2023, Case #: 112507, Categories: Evidence, Vehicular Homicide, Experts
J. Garry finds that the lower court properly granted a mother modification of an order that provided the father a week on/week off care arrangement to award her full custody of their son. The father objected to therapeutic visitation imposed after the boy refused to return to him even though the record established that unsupervised time with the father caused the child "significant distress." Affirmed.
Court: New York Appellate Divisions, Judge: Garry, Filed On: November 22, 2023, Case #: CV-22-1953, Categories: Family Law
J. Garry finds that the lower court properly outlined the procedure to be followed upon remittal of claims in which parents who live outside the city challenge the state aid formula utilized in ensuring that all children receive a constitutionally guaranteed "sound basic education." The court was allowed to consider long-running litigation during the "remedial phase" of developing a model that will apply elsewhere in the state. Affirmed.
Court: New York Appellate Divisions, Judge: Garry, Filed On: November 9, 2023, Case #: 535287, Categories: Civil Procedure, Education