Criminal Law Library Blog

From: Findlaw Opinion Summaries June 11, 2008.

CONSTITUTIONAL LAW, CRIMINAL LAW & PROCEDURE, GOVERNMENT LAW

In the Matter of Feola v. Carroll, No. 83

"When a police officer is convicted of a misdemeanor with elements which constitute willful deceit, calculated disregard for honest dealings, intentional dishonesty or corruption of purpose, an oath of office violation has occurred and the position becomes vacant without the need for a due process disciplinary hearing. Further, a conviction for endangering the welfare of a child under Penal Law section 260.10(1) conclusively establishes a lack of moral integrity"

CONTRACTS, JUDGMENT ENFORCEMENT, LABOR & EMPLOYMENT LAW, PROPERTY LAW & REAL ESTATE

Cox v. NAP Constr. Co., Inc., No. 84, 85

"When a contractor has promised to pay its workers the prevailing wages required by the United States Housing Act, the workers may sue under state law to enforce the promise"

ETHICS & DISCIPLINARY CODE, ETHICS & PROFESSIONAL RESPONSIBILITY, PER CURIAM, SANCTIONS

In the Matter of Honorable Robert M. Restaino, No. 82

"A judge is sanctioned and removed from office based on his actions when, after a device rang in his courtroom and its owner could not be determined, he arbitrarily revoked or denied the recognizance release status of 46 individuals present in his courtroom. Despite the judge's proffered psychological evidence of suffering from an anxious state of mind due to a strained marriage and recognizable prior service record, the public confidence which had been lost was irreparable"

INJURY AND TORT LAW, SPORTS LAW

Roberts v. Boys and Girls Republic, Inc., No. No. 134 SSM 11

"Dismissal of plaintiff's complaint for injuries sustained when a baseball player in an off-field on-deck batting circle struck her with a bat is affirmed where plaintiff assumed the risk of her injuries, as she concededly observed batting equipment and players swinging bats in the area which the accident occurred"

INJURY AND TORT LAW, TRANSPORTATION

Jones v. Bill , No. 89

"For the purposes of the federal Graves Amendment, an action commences on the date of the initial filing of the summons and complaint."

INSURANCE LAW

Fair Price Med. Supply Corp. v. Travelers Indem. Co., No. 105

"While an insurer is entitled to contest a claimant's claim as fraudulent, it is required to do so within the rules of the "no-fault system" which impose tight deadlines"

CONSTRUCTION, CONTRACTS, INSURANCE LAW, LABOR & EMPLOYMENT LAW, PROPERTY LAW & REAL ESTATE, WORKERS' COMPENSATION

Preserver Ins. Co. v. Ryba, No. 97

"In a coverage dispute over a jobsite injury allegedly sustained by a construction worker presenting the question of whether an employer's liability insurance coverage is unlimited or limited to $100,000 as specified in a standard form workers' compensation and employers' liability contract policy, the court of appeals finds that employer's liability is limited under the circumstances of this case where: 1) from a contractual interpretation standpoint, nothing in the underlying policy suggested unlimited liability; and 2) from a legal perspective, none of the applicable state laws provided for an unlimited employers' liability insurance."

CONTRACTS, LABOR & EMPLOYMENT LAW

Pachter v. Bernard Hodes Group, Inc., No. 86

"An 'executive' falls within the ambit of the protections afforded to 'employees' under sections 190 and 193 of the Labor Law. Also, the determination of when a commission is earned is governed by the parties' express or implied agreement."

CRIMINAL LAW & PROCEDURE

People v. Finley, No. 87, 88

"In the context of detention facilities, the small amounts of marijuana at issue, substantially less than 25 grams, were not "dangerous contraband" under Penal Law sections 205.00 (4) and 205.25 (2)."

DEBT COLLECTION, PROPERTY LAW & REAL ESTATE, TAX LAW

"In the Matter of Mill Creek Phase 1 Staten Island Bluebelt Sys., No. 95

The interest due and owing on a subject tax lien continues to accrue at the interest rate of 18%, pursuant to Administrative Code sections 11-224 and 11-319(6), from the vesting of title in the City of New York until the date of full payment of the lien."

ELECTIONS, GOVERNMENT LAW

In the Matter of Master v. Pohanka, No. 91

"Election Law section 6-120(3) allows a political party's state committee to vest itself with the authority to issue certificates of authorization for county, city or local public offices"

ELECTIONS, GOVERNMENT LAW

In the Matter of Conroy v. State Comm. of the Independence Party of New York, No. 90

I"n a declaratory judgment action seeking to invalidate an party rule on grounds that the rule conflicted with Election Law section 6-120(3), the court of appeals finds that the rule at issue does not conflict with Election Law section 6-120(3) insofar as it vests in the Executive Committee of the State Committee the authority to designate or nominate non-party members for 'non-citywide' public offices in the City of New York"

From: Findlaw Summaries, May 1, 2008.

ADMINISTRATIVE LAW, EVIDENCE, PROPERTY LAW & REAL ESTATE

In the Matter of Pantelidis v. New York City Bd. of Standards and Appeals, No. 129 SSM 6

"The order of the Appellate Division is affirmed, with costs, and the certified question is not answered upon the ground that it was unnecessary."
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CIVIL PROCEDURE, CONSTRUCTION, CONTRACTS, INJURY AND TORT LAW, INSURANCE LAW, PROPERTY LAW & REAL ESTATE, REMEDIES

Worth Constr. Co., Inc. v. Admiral Ins. Co., No. 52

"In a coverage dispute brought by a general contractor arising from injuries sustained by a worker on a staircase installed by a subcontractor, a ruling finding that subcontractor's insurer had a duty of defense and indemnity is reversed where: 1) the victim's injury stemmed from slipping on fireproofing material applied by an entirely separate company unaffiliated with insured-subcontractor; and 2) because the general contractor admitted that its claims of negligence against subcontractor were without factual merit, it conceded that the staircase was merely the situs of the accident, and thus foreclosed arguments of any connection between the victim's accident and the risk for which the coverage was intended"

CONTRACTS, HEALTH LAW, LANDLORD TENANT LAW, PROPERTY LAW & REAL ESTATE, REMEDIES

P.A. Bldg. Co. v. City of New York, No. 59

"In a landlord-tenant dispute involving whether asbestos abatement costs incurred by the landlord were "operating expenses" under the relevant terms of a commercial lease, judgment for landlord awarding additional rent due including amount of interest accrued is reversed and remanded where: 1) the underlying asbestos abatement costs were not "operating expenses" within the meaning of "escalation provisions" in the lease agreement; and 2) the interest amount on additional rent due should have been calculated from the date which an audit resisted by the landlord was finally commenced."

CORPORATION & ENTERPRISE LAW, GOVERNMENT LAW, PROPERTY LAW & REAL ESTATE, PUBLIC UTILITIES

"Jericho Water Dist. v. One Call Users Council, Inc., No. 69
With respect to Gen. Bus. Law section 761, which requires apportioning the costs of the "one-call notification system" among the operators of underground facilities who belong to it, but exempts "municipalities" from paying a share of the costs, the court of appeals rules that a 'water district' is not a municipality for these purposes and must pay its share of the cost."

CRIMINAL LAW & PROCEDURE, EVIDENCE, SENTENCING, TRANSPORTATION

People v. Cabrera, No. 61

"In a criminal case arising from a traffic accident wherein sober defendant-driver's excessive speeding claimed the lives of three passengers, conviction for criminally negligent homicide and third-degree assault is reversed and dismissed where, although defendant's excessive speeding behavior was negligent and unquestionably "blameworthy", the evidence adduced at trial did not establish that circumstances surrounding the accident amounted to the kind of "morally blameworthy" component required to infer defendant's criminal negligence."

From: Findlaw Opinion Summaries April 29, 2008.

CIVIL PROCEDURE, CONTRACTS, FAMILY LAW

In the Matter of M. S v. E. S., No. 63

"In a proceeding wherein wife sought an upward modification of maintenance and child support in a written separation agreement, judgment that the parties were bound by the terms of the separation agreement is affirmed where the Family Court lacked subject matter jurisdiction to entertain the spouse's application for increased spousal maintenance."

CIVIL PROCEDURE, EVIDENCE, INJURY AND TORT LAW

Wilson v. Galicia Contracting & Restoration Corp., No. 65

"In a personal injury action arising when plaintiff was walking under scaffolding assembled by defendant and a piece of material fell in his eye, a judgment and award for plaintiff is affirmed primarily where: 1) a claim that CPLR 3215 (f) renders the judgment a nullity was not preserved; and 2) the courts below correctly held that, due to its failure to comply with a self-executing conditional order, defendant was precluded from introducing any evidence at the inquest 'tending to defeat the plaintiff's cause of action' ".

CRIMINAL LAW & PROCEDURE, SENTENCING

People v, Sparber , No. 53

"In appeals considering whether defendants were entitled to relief of their statutory obligation to serve a term of post-release supervision (PRS) because sentencing courts failed to pronounce their PRS terms in accordance with Crim. Proc. Law sections 380.20 and 380.40, the court of appeals concludes that the procedure through which PRS was imposed upon the defendants was flawed, as it did not comply with the statutory mandate. However, in remedying this error, rather than striking the PRS from the sentences, the matters are remanded for resentencing and the proper judicial pronouncement of the relevant PRS terms."

CRIMINAL LAW & PROCEDURE, SENTENCING

In the Matter of Garner v. New York State Dep't of Corr. Serv. , No. 57

"The New York State Department of Correctional Services (DOCS) may not administratively add a mandatory period of Post-Release Supervision (PRS) onto a prisoner's sentence when the PRS term was never pronounced by the sentencing judge, as Crim. Pro. Law 380.20 and 380.40 collectively provide that only a judge may impose a PRS sentence."

From Findlaw Opinion Summaries: April 24, 2008

ADMINISTRATIVE LAW, PROPERTY LAW & REAL ESTATE, SECURITIES LAW, TAX LAW

In the Matter of Steel Los III/Goya Foods, Inc. v. Bd. of Assessors of County of Nassau, No. 49, 50

"Nassau County Administrative Code (NCAC) section 6-26.0(b)(3)(c) applies to 'payments-in-lieu-of-taxes' (PILOT payments), thus making deficits incurred by affected taxing jurisdictions resulting from property over-assessments 'a county charge.' "

ASSET FORFEITURE, COMMERCIAL LAW, DEBT COLLECTION, PROPERTY LAW & REAL ESTATE

Solow Mgmt. Corp. v. Tanger , No. 62

"Posting of an appeal bond by a judgment debtor after a marshal has executed a levy on the judgment debtor's assets does not constitute affirmative interference with a marshal's collection process which would entitle the marshal to poundage fees".

CRIMINAL LAW & PROCEDURE, EVIDENCE

People v. Mitchell, No. 51

"Conviction for burglary and related charges is affirmed over defendant's claims that his burglary conviction should be reversed because he was indicted only on one count of burglary, yet the trial jury was able to consider two alleged entries into the building, and it was unclear which of those resulted in the conviction."

ETHICS & PROFESSIONAL RESPONSIBILITY, PROPERTY LAW & REAL ESTATE

Rivkin v. Century 21 Teran Realty LLC, No. 68

"In a case addressing the scope of fiduciary duty owed by buyer's agents affiliated with a real estate brokerage firm when their principals bid on the same property, the court of appeals rules that, unless a real estate brokerage firm and principal specifically agree otherwise, the firm is not obligated to insure that its affiliated licensees forego making offers on behalf of other buyers for property on which the principal has already bid."

INJURY AND TORT LAW, LABOR & EMPLOYMENT LAW, PROPERTY LAW & REAL ESTATE

Sanatass v. Consol. Investing Co., Inc., No. 60

"A property owner is liable for a violation of Labor Law section 240(1) which proximately caused injury to a worker, even though a tenant of the building contracted for the work without the owner's knowledge."