November 25 and December 2, 2008.
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CONTRACTS, ETHICS & PROFESSIONAL RESPONSIBILITY, PROPERTY LAW & REAL ESTATE Moran v. Erk, No. 176 Where a real estate contract contains an attorney approval contingency providing that the contract is “subject to” or “contingent upon” attorney approval within a specified time period and no further limitations on approval appear in the contract’s language, an attorney for either party may timely disapprove the contract for any reason or for no stated reason. Judgment for plaintiffs is reversed.
CRIMINAL LAW & PROCEDURE, EVIDENCE People v. Hawkins, No. 175 In consolidated but otherwise unrelated criminal appeals, both convictions are affirmed where defendants did not properly preserve for appellate their challenges to the legal sufficiency of the evidence.
CRIMINAL LAW & PROCEDURE, EVIDENCE People v. Jean-Baptiste, No. 174 Reduction of conviction to manslaughter in the second degree is affirmed where, because the Appellate Division properly applied the present standard for depraved indifference murder, the evidence introduced at trial was not legally sufficient to establish defendant’s guilt of depraved indifference murder.
CRIMINAL LAW & PROCEDURE People v. Castellano, No. 173 Order affirmed where defendant’s argument that the evidence presented at trial was insufficient to support his conviction for depraved indifference murder is unpreserved for this Court’s review.
CRIMINAL LAW & PROCEDURE People v. George, No. 172 Order of the Appellate Division should be affirmed, where contrary to the People’s contention, defendant properly preserved for our review his challenge to the legal sufficiency of his depraved indifference murder conviction.
INSURANCE LAW, PROFESSIONAL MALPRACTICE Continental Casualty Co. v. Stradford, No. 180 In an action to determine whether plaintiff-insurer timely disclaimed coverage in defense of two dental malpractice actions on the basis of defendant’s non-cooperation, grant of summary judgment to defendants is reversed where issues of fact remain with respect to the timeliness of plaintiff’s disclaimer.
ADMINISTRATIVE LAW, LANDLORD TENANT LAW, PROPERTY LAW & REAL ESTATE Matter of P’ship 92 LP v. State of New York Div. of Hous. & Cmty. Renewal, No. 221 SSM 38 Order of appellate division is affirmed where: 1) by its terms, the Rent Regulation Reform Act of 1997 applied to any proceeding that was pending before the Division of Housing and Community Renewal at the time of its enactment, as this case was; and 2) there was ample basis on the record for the conclusion that, in arguing for a higher base rent, the owner had relied on an illusory tenancy.
ATTORNEY’S FEES, CONTRACTS, ETHICS & PROFESSIONAL RESPONSIBILITY, INJURY AND TORT LAW Lawrence v. Graubard Miller, No. 76 In a suit arising from legal proceedings surrounding the administration of an estate, denial of a motion to dismiss a law firm’s petition seeking to compel the payment of legal fees is affirmed where the question of whether the retainer agreement at issue was unenforceable on the basis of unconscionability, either at the time it was entered into or in retrospect, was a factual one that could not be answered at the pre-answer motion stage
CRIMINAL LAW & PROCEDURE, EVIDENCE People v. Giles, No. 181 Conviction for burglary and possession of stolen property is affirmed in part and reversed in part where evidence of defendant’s commission of prior uncharged burglaries was prejudicial as to the burglary count and required a limiting instruction.
CRIMINAL LAW & PROCEDURE Matter of Rivera v. Firetog, No. 178 In a CPLR article 78 proceeding seeking to bar a retrial for murder on double jeopardy grounds, petition is dismissed where the trial court appropriately declared a mistrial based on the jury’s deadlock after exploring alternatives, and retrial of defendant would not implicate double jeopardy.
INJURY AND TORT LAW, LANDLORD TENANT LAW, PROPERTY LAW & REAL ESTATE Kopsachilis v. 130 East 18 Owners Corp., No. 177 In a negligence action alleging that the owners of an apartment building failed to light a stairwell during a blackout, denial of defendants’ motion for summary judgment is reversed where the statutory requirement that lights in fire-stairs be kept burning continuously was not a strict-liability offense, and defendants could assert a “knowledge and consent” defense contained within the statute.
CRIMINAL LAW & PROCEDURE People v. MacShane, No. 220 SSM 40 Order of the Appellate Term is affirmed where defendant failed to meet his burden of establishing a prima facie case of discrimination under step one of the three-step protocol in Batson v Kentucky (476 US 79 ).
CRIMINAL LAW & PROCEDURE People v. Naradzay, No. 188 Convictions for attempted murder in the second degree, attempted burglary in the first degree, and criminal possession of a weapon in the fourth degree are all affirmed over defendant’s challenges to the legal sufficiency of the proof supporting his attempted burglary and murder convictions. ..
CRIMINAL LAW & PROCEDURE People v. Johnson, No. 166 In a child pornography case, the court’s application of the Board of Examiners of Sex Offenders risk Factor 7, indicating an increased level of risk when a crime “was directed at a stranger,” is affirmed over defendant’s claim that Factor 7 be interpreted in a way that makes it inapplicable to his case, where the factor’s plain language precludes such a result.
LABOR & EMPLOYMENT LAW Helmsley-Spear, Inc. v. Fishman, No. 164 In a nuisance action brought by managers of the Empire State Building against a union that was loudly picketing and drumming outside the property, the private nuisance cause of action is not preempted by the National Labor Relations Act (NLRA), as loud drumming is not an “integral part of the legislative scheme” of the NLRA. Matter remanded for consideration of issues raised but not determined
ADMINISTRATIVE LAW, GOVERNMENT BENEFITS, LABOR & EMPLOYMENT LAW In the Matter of Gormley v. New York State Ethics Commission, No. 162 Imposition of a civil penalty under Public Officers Law section 73(18) does not require the New York State Ethics Commission to prove that petitioner knew the conduct was prohibited and acted intentionally to violate the statute. Read more…
CIVIL PROCEDURE Those Certain Underwriters at Lloyds, London v. Occidental Gems, Inc., No. 171 Order denying plaintiffs’ motion to confirm a special referee’s report, which recommended that defendant be compelled to produce a non-U.S. resident for oral deposition in New York and testimony and documents relating to a foreign arbitration in which defendant is not a party, is affirmed where evidence did not support the special referee’s recommendation