67 results for 'judge:"Reynolds Fitzgerald"'.
J. Reynolds Fitzgerald finds that the lower court properly held that the town had authority to permanently bar junkyards on four parcels zoned rural residential. Nonconforming uses generally may continue following zoning alterations in the event that pre-existing use had been legally permitted, but the property owner failed to demonstrate the town had awarded a license allowing the junkyard to operate, and selective enforcement did not occur. However, monetary penalties should be recalculated and reduced to $296,500. Affirmed.
Court: New York Appellate Divisions, Judge: Reynolds Fitzgerald, Filed On: May 2, 2024, Case #: 535723, Categories: Zoning
J. Reynolds Fitzgerald finds that defendant was properly denied reclassification after being designated a risk level three sex offender for raping two minors. Defendant, who had been held in civil confinement for violating parole, and who went back to prison after being convicted of an aggravated family offense, points to the fact that he was 62 years old, but he failed to demonstrate that he completed sex offender treatment. Meanwhile, defendant's lengthy criminal history accumulated other convictions. Affirmed.
Court: New York Appellate Divisions, Judge: Reynolds Fitzgerald, Filed On: April 25, 2024, Case #: 535716, Categories: Sentencing, Sex Offender
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
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
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J. Reynolds Fitzgerald finds that the lower court properly found for a medical group in a cardiologist's breach of contract claims because the employment agreement contained a "termination for convenience" provision that permitted firing for no reason as long as six months' pay was provided. That he was not permitted to see patients during that six months did not violate the contract. Affirmed.
Court: New York Appellate Divisions, Judge: Reynolds Fitzgerald, Filed On: April 11, 2024, Case #: CV-23-0988, Categories: Employment, Contract
J. Reynolds Fitzgerald finds that the workers' compensation board properly denied benefits on grounds that a warehouse employee's injuries were not job-related. The employee contends she had been trampled by fellow workers as they attempted to board a city bus at end of shift, but the bus stop was not on the employer's property, nor was the bus operated for the employer's benefit or the employee's fare subsidized by the employer. Affirmed.
Court: New York Appellate Divisions, Judge: Reynolds Fitzgerald, Filed On: March 21, 2024, Case #: CV-22-2154, Categories: Workers' Compensation
J. Reynolds Fitzgerald finds that a civil service employee who worked as a vocational instructor at a state prison was properly held ineligible for benefits on grounds that he was not totally unemployed. The instructor, who followed a September-June academic year, previously worked optional summer employment before the Covid-19 pandemic, but the fact that classes were not held in the summer of 2020 did not render him eligible for regular or pandemic unemployment benefits since he continued full-time, salaried employment. Affirmed.
Court: New York Appellate Divisions, Judge: Reynolds Fitzgerald, Filed On: March 21, 2024, Case #: CV-23-0541, Categories: Employment, Covid-19
J. Reynolds Fitzgerald finds that the lower court properly found for an insurer sued by a policyholder for not covering all lost business income after a fire destroyed one building in an 11-building, 200-unit apartment complex and caused some tenants to vacate due to attendant inconveniences. The policy was unambiguous in stating that only losses caused directly by physical damage or destruction to the property qualified for lost business coverage. Affirmed.
Court: New York Appellate Divisions, Judge: Reynolds Fitzgerald, Filed On: March 14, 2024, Case #: CV-22-2347, Categories: Insurance
J. Reynolds Fitzgerald finds that the lower court properly dismissed personal injury claims brought after a delivery driver tripped and fell at a restaurant while trying to move a kayak paddle he saw on the floor because the paddle constituted an open, obvious obstacle that was not inherently dangerous. Affirmed.
Court: New York Appellate Divisions, Judge: Reynolds Fitzgerald, Filed On: March 7, 2024, Case #: CV-22-2207, Categories: Premises Liability
J. Reynolds Fitzgerald finds that the lower court improperly dismissed malpractice claims brought against an orthopedist and hospital after arthroscopic knee surgery led to a staph infection that ultimately required total knee replacement. The patient's medical expert raised triable issues of fact as to whether infection should have been suspected earlier and whether tests should have been performed to rule out the possibility. Reversed.
Court: New York Appellate Divisions, Judge: Reynolds Fitzgerald, Filed On: February 29, 2024, Case #: 535732, Categories: Experts, Medical Malpractice
J. Reynolds Fitzgerald finds that defendant was properly convicted of attempted murder, attempted assault, robbery, burglary and weapon possession stemming from an altercation at a motel because the verdict was supported by testimony from the robbery victim, who had been shot in the leg in his motel room, and from codefendant, who struggled with the victim. Affirmed.
Court: New York Appellate Divisions, Judge: Reynolds Fitzgerald, Filed On: February 29, 2024, Case #: 111647, Categories: Evidence, Firearms, Robbery
J. Reynolds Fitzgerald finds that the lower court improperly intervened in a parental dispute over a child's religious upbringing. The parents, who have joint legal custody and share equal parenting time, were directed to attend coparenting counseling and to refrain from taking the child to religious services or instruction until they could overcome their differences. Since the consent order governing custody of their then-2-year-old made no reference to religion, the requirements constituted overreach.
Court: New York Appellate Divisions, Judge: Reynolds Fitzgerald, Filed On: February 22, 2024, Case #: 535537, Categories: Family Law
J. Reynolds Fitzgerald finds that the workers' compensation board properly rejected a widow's claim seeking death benefits on grounds that her husband's death was not job-related. Her husband, a mass-transit track inspector, died of cardiac arrest and a pulmonary embolism months after contracting Covid-19, but his widow failed to demonstrate the virus was prevalent in the workplace or that he had been infected by a coworker. Affirmed.
Court: New York Appellate Divisions, Judge: Reynolds Fitzgerald, Filed On: February 15, 2024, Case #: CV-23-0309, Categories: Covid-19, Workers' Compensation
J. Reynolds Fitzgerald finds that the unemployment insurance appeal board properly held that a hotel that contracted out its nightclub on weekends to party promoters constituted an employer liable for additional insurance contributions based on remuneration paid to a "bottle host" and other such employees who worked the parties. The hotel determined when the host worked, how much he was paid, and the commission he received on sales of bottled liquor. Affirmed.
Court: New York Appellate Divisions, Judge: Reynolds Fitzgerald, Filed On: February 15, 2024, Case #: CV-23-0345, Categories: Employment
J. Reynolds Fitzgerald finds that the lower court properly convicted defendant following his guilty plea to attempted promoting prison contraband. Defendant's claim that his plea was involuntary was not preserved for review, and his admission during the plea colloquy that he possessed a weapon, even if it was to defend himself against another inmate, did not trigger an exception to the preservation requirement. Affirmed.
Court: New York Appellate Divisions, Judge: Reynolds Fitzgerald, Filed On: February 8, 2024, Case #: 112674, Categories: Weapons, Plea
J. Reynolds Fitzgerald finds that the workers' compensation board properly rescinded benefits awarded to a butcher for back, knee, and leg injuries for failure to demonstrate attachment to the labor market. The butcher prematurely argued that he should be granted a "permissible inference" to avoid demonstrating job search efforts on grounds that lost wages related to his degree of disability. Affirmed.
Court: New York Appellate Divisions, Judge: Reynolds Fitzgerald, Filed On: February 8, 2024, Case #: CV-23-0290, Categories: Civil Procedure, Workers' Compensation
J. Reynolds Fitzgerald finds that the lower court properly convicted defendant of murder, conspiracy, weapon possession, and life settlement fraud in a murder-for-hire scheme to collect on an insurance policy taken out on an employee. Evidence supported the verdict, including cell phone records, surveillance footage, and license plate readers that mapped codefendants' trip from defendant's house in Delaware to the victim's neighborhood in New York and then back to Delaware. Meanwhile, testimony supported the fraud count since defendant initially alleged he and the victim were domestic partners before admitting to an insurance agent that they were not. Affirmed.
Court: New York Appellate Divisions, Judge: Reynolds Fitzgerald, Filed On: January 25, 2024, Case #: 112096, Categories: Fraud, Murder, Conspiracy
J. Reynolds Fitzgerald finds that an activities aide for special needs children was properly denied disability retirement benefits after she was twice injured by students who collided with her because she failed to contradict an orthopedist's conclusions that she engaged in "symptom magnification" and that she had not been permanently incapacitated from her job duties. Affirmed.
Court: New York Appellate Divisions, Judge: Reynolds Fitzgerald, Filed On: January 18, 2024, Case #: CV-22-1980, Categories: Employment, Social Security
[Combined.] J. Reynolds Fitzgerald finds that the lower court properly found for the state and dismissed claims for mandamus relief by nursing homes seeking to have their appeals of Medicaid reimbursement rates processed. Such relief was not available because processing the appeals was a discretionary duty, not ministerial, in that it involved decisions on how quickly and in what order to take up the appeals. Furthermore, the nursing homes established no cognizable vested property interest in the appeals to support claims of due process violations. Affirmed.
Court: New York Appellate Divisions, Judge: Reynolds Fitzgerald, Filed On: January 18, 2024, Case #: 534801, Categories: Medicaid
J. Reynolds Fitzgerald finds that an appeal should be dismissed as challenging amendments to subdivision plans that allow construction of an on-site wastewater treatment system to serve certain lakefront residential lots in Adirondack Park. During pendency, the system was built, and exemptions to the mootness doctrine did not apply since plaintiffs failed to seek further injunctive relief after the lower court vacated the temporary restraining order.
Court: New York Appellate Divisions, Judge: Reynolds Fitzgerald, Filed On: January 11, 2024, Case #: 535816, Categories: Civil Procedure, Property
J. Reynolds Fitzgerald finds that the lower court improperly declined to find for lenders in foreclosure claims affecting mortgaged parcels tied to a settlement reached in another state. The lenders offered sufficient proof of the mortgage and unpaid note to demonstrate default, which the property owners conceded had occurred. Furthermore, the owners brought meritless claims in contending their ability to raise fact issues had been impacted by the lenders' failure to comply with discovery. Reversed.
Court: New York Appellate Divisions, Judge: Reynolds Fitzgerald, Filed On: January 4, 2024, Case #: 535897, Categories: Discovery, Banking / Lending, Foreclosure
J. Reynolds Fitzgerald finds that the lower court properly dismissed a mother's request for custody of her three children following the death of her sister, who had custody of two of them. A niece who assumed care, and a friend who had custody of the third child, demonstrated that their custodial arrangements suited the best interests of the children since the mother admitted to mental health struggles and lagged in contacting the children. Reducing the mother's parenting time was appropriate given the anxiety her no-show tendencies caused at least two of the children. Affirmed.
Court: New York Appellate Divisions, Judge: Reynolds Fitzgerald, Filed On: December 28, 2023, Case #: 535570, Categories: Family Law
J. Reynolds Fitzgerald finds that the lower court properly granted a father primary physical and sole legal custody of his child. The mother previously shared parenting time, but communications had broken beyond repair. Meanwhile, the best interests of the child were better served in the father's care. The mother was properly sentenced to a six-month suspended jail term for violating a court order by taking the child to Florida for a week. Affirmed.
Court: New York Appellate Divisions, Judge: Reynolds Fitzgerald, Filed On: December 21, 2023, Case #: 535135, Categories: Family Law
J. Reynolds Fitzgerald finds that the lower court properly revoked a suspended judgment and terminated a mother's parental rights. The suspension gave the mother time to prove fitness in order to be reunited with her two children following a finding of permanent neglect, but evidence indicates she failed to do so. Meanwhile, the children's best interests would be served by separating them for adoption due to safety concerns that had been raised. Affirmed.
Court: New York Appellate Divisions, Judge: Reynolds Fitzgerald, Filed On: December 21, 2023, Case #: 534423, Categories: Family Law
J. Reynolds Fitzgerald finds that the unemployment insurance appeal board properly held that a school district employee with two part-time jobs was ineligible for benefits because she was not totally unemployed. The Covid-19 pandemic affected both positions since in-person instruction ceased for a time, but the employee was paid until the end of the school year under the union contract she held under one of the jobs and received a reappointment letter for the next academic year. Affirmed.
Court: New York Appellate Divisions, Judge: Reynolds Fitzgerald, Filed On: December 14, 2023, Case #: 534616, Categories: Employment, Insurance
[Consolidated.] J. Reynolds Fitzgerald finds that the lower court properly awarded a mother primary custody as the parent who could better provide structure and discipline for the parties' child. However, the record did not support an order requiring the mother to keep her child in the school district where she began kindergarten under the father's care. Due to the subsequent passage of time, remittal is necessary to evaluate that point. Meanwhile, the father was improperly awarded attorney fees since both parties stipulated to covering their own costs. Affirmed in part.
Court: New York Appellate Divisions, Judge: Reynolds Fitzgerald, Filed On: December 7, 2023, Case #: 533969, Categories: Family Law, Attorney Discipline