84 results for 'judge:"Powers"'.
J. Powers finds that the lower court properly held that a change in state executive law that established the commission on ethics and lobbying in government was unconstitutional. Former Gov. Andrew Cuomo brought the claim after the new ethics panel took up a probe initiated by its predecessor into his book on leading during the Covid-19 pandemic. However, alterations configured by the state legislature failed to observe the traditional separation of powers by usurping a governor's executive authority and making the new commission the enforcer of ethics laws instead. Affirmed.
Court: New York Appellate Divisions, Judge: Powers, Filed On: May 9, 2024, Case #: CV-23-1778, Categories: Government
J. Powers finds the trial court properly ruled that a nontransferee attorney may not be held jointly liable for the alleged fraudulent transfer of his client. The attorney is “neither the debtor nor transferee.” Affirmed.
Court: Oregon Court of Appeals, Judge: Powers, Filed On: May 8, 2024, Case #: A176528, Categories: Fraud
J. Powers finds the trial court plainly erred by failing to instruct the jury of the requisite culpable mental state concerning the value of the property stolen. However, based on other evidence, it had “little likelihood of affecting the verdict.” Affirmed.
Court: Oregon Court of Appeals, Judge: Powers, Filed On: May 8, 2024, Case #: A177109, Categories: Theft, Jury Instructions
J. Power finds that the lower court properly held that restrictive covenants on parcels within a subdivision barred offering a single-family residence as a short-term Airbnb rental. While owners were permitted to rent a premises, restrictions limit use to "single family residential purposes," which implies longer-term living arrangements as opposed to short stays. Affirmed.
Court: New York Appellate Divisions, Judge: Powers, Filed On: May 2, 2024, Case #: CV-23-0610, Categories: Property
J. Powers finds the trial court properly resolved a dissolution dispute related to property. A husband paid off a mortgage from a “personal” bank account, the property never generated income, and the wife never lived in the house or contributed to it in any manner. Affirmed.
Court: Oregon Court of Appeals, Judge: Powers, Filed On: May 1, 2024, Case #: A176322, Categories: Family Law
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J. Powers finds the juvenile court properly changed the permanency plan for the father’s child. Record of the child’s trauma and diagnoses “establishes that parenting [the child] requires emotional stability in a calm environment that focuses on [the child’s] specific needs.” Affirmed.
Court: Oregon Court of Appeals, Judge: Powers, Filed On: May 1, 2024, Case #: A180913, Categories: Family Law
J. Powers finds the trial court erred in applying a “community standard of care” instead of the “deliberate indifference” standard applicable to a medical habeas claim. “The trial court’s reasoning does not address whether plaintiff suffered ‘unnecessary and wanton infliction of pain’ by prison officials” as required. Reversed.
Court: Oregon Court of Appeals, Judge: Powers, Filed On: May 1, 2024, Case #: A175798, Categories: Habeas, Prisoners' Rights
J. Kamins finds the trial court erred by declining to suppress evidence used to convict defendant of DUII. “Officer’s request to defendant to perform FSTs constituted interrogation after defendant had invoked her right to an attorney.” Reversed.
Court: Oregon Court of Appeals, Judge: Powers, Filed On: May 1, 2024, Case #: A177789, Categories: Evidence, Dui
J. Powers finds that the lower court properly classified defendant as a risk level two sex offender after adding "points" to his assessment for sex crimes committed against a stranger when he grabbed the victim's buttocks and masturbated in front of her at a bus stop. Without direct evidence that defendant knew the victim, the inference that they were not acquainted was reasonable. Affirmed.
Court: New York Appellate Divisions, Judge: Powers, Filed On: April 25, 2024, Case #: CV-23-1315, Categories: Evidence, Sentencing, Sex Offender
[Consolidated.] J. Powers finds that the lower court properly denied borrowers reargument in collections claims for failure to present material facts challenging proof of credit card charges proffered by the bank, and because the borrower's affirmative defense of usury lacked merit, since New York usury laws do not apply to national banking institutions located outside the state. Affirmed.
Court: New York Appellate Divisions, Judge: Powers, Filed On: April 25, 2024, Case #: CV-22-2220, Categories: Banking / Lending
J. Powers finds that the lower court improperly declined to recalculate a father's child support arrears after he lost his full-time job because omissions in financial paperwork were not relevant to the 17-month period during which the father was either unemployed or only worked part-time while being treated for kidney failure. On remittal, the court should determine how to credit an overpayment of child support that had been made after one of his three children turned 21. Reversed.
Court: New York Appellate Divisions, Judge: Powers, Filed On: April 25, 2024, Case #: CV-23-0508, Categories: Family Law
J. Powers finds the Workers’ Compensation Division erred in denying appellant’s Worker Requested Medical Examination (WRME) request. “When an insurer submits an IME report as evidence to support its denial of a worker’s claim, the denial is ‘based’ on an IME such that the worker is eligible for a WRME.” Reversed.
Court: Oregon Court of Appeals, Judge: Powers, Filed On: April 17, 2024, Case #: A176678, Categories: Workers' Compensation
J. Powers finds the juvenile court properly terminated a father’s parental rights to his child. “Father has a substance abuse problem, has been in a domestically violent relationship with [the child’s mother]…and does not have a viable plan for [the child’s] return.” Affirmed.
Court: Oregon Court of Appeals, Judge: Powers, Filed On: April 17, 2024, Case #: A182144, Categories: Family Law
J. Powers finds the juvenile court properly exercised jurisdiction over two children. “Mother’s own trauma and PTSD responses impair her ability to parent her children with behavioral needs that require structure and routine.” Affirmed.
Court: Oregon Court of Appeals, Judge: Powers, Filed On: April 17, 2024, Case #: A182035, Categories: Family Law
J. Powers finds that defendant was properly convicted based on his guilty plea to manslaughter and grand larceny stemming from his grandmother's death. Defendant contends that statements indicating his grandmother died from falling down the stairs in her home should have been suppressed on grounds that at the time he made the statements, following his arrest on unrelated charges brought after he reported his grandmother missing, he had required medical attention. However, an audiovisual recording demonstrated that defendant had been alert, if uncomfortable from withdrawal. Affirmed.
Court: New York Appellate Divisions, Judge: Powers, Filed On: April 11, 2024, Case #: 113051, Categories: Miranda, Search, Manslaughter
J. Powers finds that the workers' compensation board improperly declined to review a decision entered in claims contending plaintiff sustained an occupational disease of job-related hearing loss from handling asbestos because the action must be remitted a second time to address why a copy of audiogram test results from an independent medical examiner was not in plaintiff's file, which provided the basis for the benefits award. Reversed.
Court: New York Appellate Divisions, Judge: Powers, Filed On: April 4, 2024, Case #: 536164, Categories: Civil Procedure, Workers' Compensation
J. Powers finds that the lower court properly altered the custody arrangement in which a divorced couple shared legal and physical custody of their children to grant the father primary physical custody of his two children because the mother failed to counter evidence of neglect. Affirmed.
Court: New York Appellate Divisions, Judge: Powers, Filed On: March 28, 2024, Case #: CV-23-0413, Categories: Family Law
J. Powers finds that the workers' compensation board improperly held that a New York City train operator did not receive a compensable on-the-job injury due to Covid-19 exposure. She alleged the illness caused major depressive disorder, but she failed to offer credible medical evidence demonstrating that she contracted the virus in the first place. However, her alternative claim for psychological injury arising from the stress caused by the prevalence of Covid-19 in the workplace must be remitted for further consideration as to whether such created an "extraordinary event" constituting a compensable accident. Reversed.
Court: New York Appellate Divisions, Judge: Powers, Filed On: March 28, 2024, Case #: 535434, Categories: Covid-19, Workers' Compensation
J. Kamins finds the Department of Human Services Office of Training, Investigation and Safety properly determined that a foster parent abused a foster child through involuntary seclusion by locking her in a play structure. “The play structure functioned as a room, because it was inside petitioner’s home and set off by a partition from the living room space.” Affirmed.
Court: Oregon Court of Appeals, Judge: Powers, Filed On: March 27, 2024, Case #: A180063, Categories: Family Law
J. Kamins finds the trial court properly denied an individual's anti-SLAPP motion to strike. The court’s ruling was proper only as it relates to “plaintiffs’ claims arising out of the ‘barrage’ of text messages, conduct that had no connection to furthering defendant’s right to free speech.”
Court: Oregon Court of Appeals, Judge: Powers, Filed On: March 6, 2024, Case #: A177873, Categories: Anti-slapp
J. Powers finds that the tax appeals tribunal properly held that survey data provided to advertiser clients constituted sale of information services requiring payment of additional sales tax. By law, data collected, compiled, and analyzed in a non-personal nature is taxable when it can be incorporated into reports provided to others, which occurred here when the company prepared charts and graphs on survey results for clients. Affirmed.
Court: New York Appellate Divisions, Judge: Powers, Filed On: February 29, 2024, Case #: 535445, Categories: Tax
J. Powers finds that the lower court properly declined to dismiss a fraternity from sexual assault claims that a coed brought under the Child Victims Act because documents established that the national fraternity had a principal-agency relationship with the on-campus chapter and that the former had constructive notice of ongoing illegal activities involving alcohol and sex abuse at the latter. Affirmed.
Court: New York Appellate Divisions, Judge: Powers, Filed On: February 29, 2024, Case #: 534967, Categories: Tort, Agency
J. Powers finds the trial court properly admitted evidence used to convict defendant of DUII. The officer “specifically informed defendant that he was not under arrest prior to administering FSTs and after defendant was given Miranda warnings.” Affirmed.
Court: Oregon Court of Appeals, Judge: Powers, Filed On: February 22, 2024, Case #: A176268, Categories: Evidence, Miranda, Dui
J. Powers finds the circuit court properly dismissed a mandamus action against the planning director for Multnomah County and Multnomah County. Whether a land use is “outright permitted” or “conditional” depends on “whether the proposed use requires discretionary local permit approval ‘within the given zoning designation where the land is located’.” Affirmed.
Court: Oregon Court of Appeals, Judge: Powers, Filed On: February 22, 2024, Case #: A179527, Categories: Zoning