Court Decisions

April 3, 2009

Findlaw Case Summaries: New York Court of Appeals. 04/03/2009

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ATTORNEY’S FEES, INSURANCE LAW LMK Psych. Servs., P.C. v. State Farm Mut. Auto Ins. Co., No. 31 In an action for no-fault insurance proceeds, the attorneys’ fee award in favor of Plaintiffs is reversed, where: 1) attorneys’ fees in an insurance claim are to be calculated based on the aggregate of all bills for each insured; and 2) an insurer who issues a proper and timely denial is entitled to tolling with regard to interest on the claim.

CONSTRUCTION, INJURY AND TORT LAW, PROPERTY LAW & REAL ESTATE Kerusa Co. v. W10Z/515 Real Estate Ltd. Pshp., No. 36 In a fraud action stemming from construction defects, the dismissal of the complaint is affirmed where a purchaser of a condominium apartment may not bring a claim for common-law fraud against the building’s sponsor when the fraud is predicated solely on alleged material omissions from the statutorily mandated offering plan amendments

INJURY AND TORT LAW, LABOR & EMPLOYMENT LAW Ferluckaj v. Goldman, Sachs & Co., No. 45 In a tort action based on Plaintiff janitor’s accident while cleaning a building leased to Defendant, the denial of Defendant’s summary judgment motion is reversed, where Defendant did not hire Plaintiff’s employer and exercised no control over Plaintiff’s work. .

PROBATE, TRUSTS & ESTATES, SPORTS LAW Golden Gate Yacht Club v. Societe Nautique de Geneve, No. 25 In an action seeking to exclude a challenger from the America’s Cup yacht race, summary judgment for Plaintiff is affirmed where the phrase “having for its annual regatta” in the trust instrument required a yacht club to hold an annual regatta on the sea prior to issuing its challenge to participate in the race Continue reading

March 27, 2009

Findlaw Case Sumaries: Second Circuit U.S. Court of Appeals

by David Badertscher

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March 24-26, 2009

CRIMINAL LAW & PROCEDURE, SENTENCING

March 27, 2009

Findlaw Case Summaries: U.S. Supreme Court. March 24-25, 2009.

by David Badertscher

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March 24-25, 2009

CRIMINAL LAW & PROCEDURE, HABEAS CORPUS

March 25, 2009

New York Appellate Criminal Cases Originating from the New York Supreme Court NY County – LexisNexis. March 25, 2009.

by David Badertscher

Update from the Lexis Alert Service,

March 25, 2009.

1. People v. Rivers, 1636, 3191/03, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2009 NY Slip Op 298; 58 A.D.3d 529; 870 N.Y.S.2d 790; 2009 N.Y. App. Div. LEXIS 272, January 22, 2009, Decided, January 22, 2009, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.

March 24, 2009

New York Appellate Criminal Cases Originating from the New York Supreme Court NY County – Lexis-Nexis. March 24, 2009. 21

by David Badertscher

Update from the Lexis Alert Service,

March 24, 2009.

1. People v. Mynin, 5138, 4387/05, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2009 NY Slip Op 455; 58 A.D.3d 581; 872 N.Y.S.2d 50; 2009 N.Y. App. Div. LEXIS 460, January 29, 2009, Decided, January 29, 2009, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State …
Judgment, Supreme Court, New York County (Michael J. Obus, …

2. People v. Cabassa, 5141, 11646/91, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2009 NY Slip Op 457; 58 A.D.3d 583; 872 N.Y.S.2d 687; 2009 N.Y. App. Div. LEXIS 473, January 29, 2009, Decided, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State …
Judgment of resentence, Supreme Court, New York County (John Cataldo, J.), …

3. People v. Gutierrez, 5125, 5600/99, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2009 NY Slip Op 449; 58 A.D.3d 577; 872 N.Y.S.2d 687; 2009 N.Y. App. Div. LEXIS 453, January 29, 2009, Decided, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State …
Judgment, Supreme Court, New York County (Leslie Cocker Snyder, …

4. People v. Burnside, 5114, 4183/05, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2009 NY Slip Op 433; 58 A.D.3d 551; 870 N.Y.S.2d 911; 2009 N.Y. App. Div. LEXIS 429, January 27, 2009, Decided, January 27, 2009, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State …
Judgment, Supreme Court, New York County (Gerald Harris, J.), ..
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March 23, 2009

2009 Montana Court Order on Universal Citation

by David Badertscher

Many thanks to Kathy Carlson*, Wyoming State Library, for sending the following about the recent Montana court order on universal citation:

“I need to watch for the publication of Wyoming Rule changes in the Pacific advance sheets, today I noticed a rule change in Montana regarding the universal citation was issued on January 22nd. I went to the Montana Supreme Court website and found a copy of the order under the tab Orders if anyone is interested. The new order simplifies the pinpoint citation process [no longer a need to repeat the paragraph numbers in parallel cites”

http://fnweb1.isd.doa.state.mt.us/idmws/docContent.dll?Library=CISDOCSVR01^doaisd510&ID=003807381

March 23, 2009

Findlaw Case Summaries: Constitutional Law 10

by David Badertscher

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March 16 – 20, 2009:

U.S. 1st Circuit Court of Appeals, March 19, 2009 Levesque v. Doocy , No. 08-1814

March 23, 2009

Findlaw Case Summaries: Criminal Law and Porcedure

by David Badertscher

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March 16 – 20, 2009:

U.S. 1st Circuit Court of Appeals, March 17, 2009 US v. Vargas, No. 08-1377

March 16, 2009

Findlaw Case Summaries: Criminal Law. March 9 – 13, 2009. 13

by David Badertscher

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March 9 – 13, 2009:

U.S. Supreme Court, March 09, 2009 Vermont v. Brillon, No. 08-88 The Vermont Supreme Court’s reversal of Defendant’s domestic violence conviction is reversed, where the Vermont Supreme Court held that delays attributable to Defendant’s assigned counsel denied Defendant a speedy trial, but assigned counsel, just as retained counsel, act on behalf of their clients, and delays sought by counsel are ordinarily attributable to the defendants they represent.

U.S. 1st Circuit Court of Appeals, March 12, 2009 US v. Rivera-Maldonado , No. 07-1426
Judgment against defendant for possession of child pornography is vacated where: 1) in plain error, the magistrate judge relied on the plea agreement and erroneously told defendant that the maximum possible period of supervised release was three years, and did not inform defendant that he could be sentenced to lifetime supervised release; 2) the error affected defendant’s substantial rights as he has shown a reasonable probability that he would not have entered the guilty plea if he understood that it would lead to a lifetime of supervised release; and 3) the error seriously affected the fairness, integrity, or public reputation of judicial proceedings. Case is remanded with instructions that defendant be permitted to withdraw his guilty plea.

U.S. 1st Circuit Court of Appeals, March 12, 2009 US v. Arbour, No. 07-1979
Sentence for drug and firearms offenses is affirmed where the district court did not commit clear error in holding that defendant was involved in a criminal activity that was extensive and that he qualified as a leader or organizer of the criminal activity, thereby invoking an increase in his offense level under the Sentencing Guidelines.
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March 16, 2009

Findlaw Case Summaries: Constitutional Law 19. March 9 – 13, 2009.

by David Badertscher

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March 9 – 13, 2009:

U.S. 3rd Circuit Court of Appeals, March 10, 2009 Fontroy v. Beard, No. 07-2446 In an action involving the First Amendment rights of prisoners, district court’s judgment is reversed where the defendant’s new prison mail policy requiring attorneys and courts to affix control numbers to mail sent to inmates is reasonably related to legitimate penological interests and thus does not unconstitutionally infringe on First Amendment rights, as there is a rational connection between the mail policy and the prison’s interest in prison security and safety.