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Past Five Days' Decisions Sunday, November 22, 2009
November 23, 2009
NEW YORK COUNTY
Taxation
Corporation Lacks Standing to Challenge Allegedly Unconstitutional Tax Law That Is No Longer Applicable
Ryan Inc. v. NYS Dept. of Taxation and Finance
NEW YORK COUNTY
Government
City's Decision to Disqualify Petitioner From Bidding On Contract Had Rational Basis; Annulment Denied
Powerhouse Diesel Services Inc. v. Hirst
KINGS COUNTY
Trusts and Estates
One Fee for Legal Services for Distribution Allocated To Trial, Incoming and Outgoing Estate Counsel
Estate of Damadath Singh
NEW YORK COUNTY
Employment
Employee Granted Discovery to Be Able to Fully Oppose Motion to Dismiss Discrimination Claims
Lazansky v. Robert Lee Morris Inc.
NEW YORK COUNTY
Torts
Landlord Fails to Eliminate Issue as it Owed No Duty To Tenant?s Patron at Fashion Show; Dismissal Denied
Imparato v. AGB 15th Street LLC
U.S. DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
Contracts
Contract Suit Alleging Intermingled Assets Is Dismissed as Too Vague for Alter Ego Liability
Sysco Food Service of Metro NY v. Jekyll & Hyde Inc.
APPELLATE DIVISION
SECOND DEPARTMENT
Family Law
Free With Registration: Abandonment Must Be Sexual, Not Social, To Divorce, Panel Says
Davis v. Davis
U.S. DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
Criminal Practice
Court Lifts TRO, Orders Alleged Impermissibly Seized Items to Be Reviewed, Inventoried
Matter of Madison
BRONX COUNTY
Insurance Law
Provider Denied Summary Judgment; MVAIC Precluded From Responding to Discovery Demands
Ave T MPC Corp. v. Motor vehicle Accident Indemnification Corp.
U.S. DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
Insurance Law
Insurer Has No Duty to Indemnify; Court Finds Underlying Claims Fall Within Policy Exclusions
American Automobile Insurance Co. v. Advest Inc.
U.S. DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
Civil Rights
Student's Due Process Claim Involving Witness Cross-Examination at Suspension Hearing Survives
Lopez v. Bay Shore Union Free School
U.S. DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
Evidence
Claims Analysis Including Possible Litigation Position Is Protected Under Work Product Doctrine
Gross Construction Assoc. Inc. v. American Manufacturers Mutual Insurance Co.
November 20, 2009
NEW YORK COUNTY
Government
Court Finds Rational Inmate's Allegation He Waited To Appeal Denial of FOIL Requests Until After Trial
Matter of Dawkins v. David
DUTCHESS COUNTY
Trusts and Estates
Court Declines Jurisdiction as Petitioners Chose To Previously Commence Action in Supreme Court
Estate of Jan A. Headless
BRONX COUNTY
Criminal Practice
'Commencement' of Final Hearing Requires More Than Division Appearing, Announcing Readiness
People (ex rel. Hudson) v. Warden, Rikers Island
U.S. COURT OF APPEALS, SECOND CIRCUIT
Business Law
Court Exercises Its Discretion; Denies Prevailing Party's Motion to Recover Costs From Adversary
Heath v. Securities and Exchange Commission
NEW YORK COUNTY
Labor Law
Court Dismisses Worker's Negligence Claim; Denies Dismissal of Labor Law §240(1) Suit
Hurley v. Best Buy Stores LP
NEW YORK COUNTY
Bankruptcy
Motion for Default Against Both Defendants Stayed Pending Individual Defendant's Bankruptcy Petition
Florists' Transworld Inc. v. New York Floral Group Inc.
KINGS COUNTY
Family Law
ACS's Reasonable Efforts Claim Rejected; Attempts To Keep Family Together Not at Reasonable Level
Matter of Jamie C. v. Margarita C.
U.S. COURT OF APPEALS, SECOND CIRCUIT
Appeals
Court Exercises Its Discretion; Denies Prevailing Party's Motion to Recover Costs From Adversary
Moore v. The County of Delaware
U.S. DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
Civil Practice
No Legal Error in Court's Decision to Revisit Ruling Prompted by Untimely Motion for Reconsideration
Aleman v. Bayshore Union Free School District
NEW YORK STATE COURT OF APPEALS
Free: Narrow Ruling Upholds Recognition of Same-Sex Marriage in Two Cases
Lewis v. New York State Department of Civil Service
U.S. DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
Employment
Hostile Work Environment Claim Stands; Alleged Harassment by Co-Worker Was Based on Gender
Sclafani v. PC Richard & Son
U.S. DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
Insurance Law
Insurers of Cruise Ship Outbreak Claims Must Produce Pollution Exclusion Clause Documents
Pentair Water Treatment Co. v. The Continental Insurance Co.
November 19, 2009
NEW YORK COUNTY
Evidence
No 'New' Information Contained in Plaintiff's Bill Of Particulars; Defendant Denied Its Preclusion
McManus v. Windolm
BRONX COUNTY
Civil Practice
Court Declines to Modify Compromise Order That Would Reduce Amount Infant Entitled to Receive
Pimental v. DeJesus
NEW YORK COUNTY
Contracts
Owner Fails to Show Elements to Trigger Judicial Scrutiny of Board?s Decision
Katz v. Board of Managers
NEW YORK COUNTY
Employment
Professor May Supplement Complaint to Allege Discriminatory Acts Against Him After Action Filed
Akiba v. Queens College
NASSAU COUNTY
Landlord/Tenant Law
Landlords Fail to Serve Rent Notice in Accordance With RPAPL §735, Rendering Demand Insufficient
Price v. Roberts
APPELLATE DIVISION
FIRST DEPARTMENT
Government
Command Officer's $579,728 Retaliation Award Is Affirmed on Constructive Discharge from Job
Albunio v. City of New York
U.S. DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
Civil Practice
Hospital's Non-Payment Claims Are Preempted By ERISA Statute
Montefiore Medical Center v. Teamsters Local 272
U.S. DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
Evidence
Rule 27 Discovery Is In Anomalous Situation; No Authority to Give Requested Discovery Relief
Jackson v. Good Sheperd Services
U.S. COURT OF APPEALS, SECOND CIRCUIT
Constitutional Law
Free With Registration: Circuit Upholds Restrictions on New Parades Along Fifth Avenue
International Action Center v. City of New York
U.S. COURT OF APPEALS, SECOND CIRCUIT
Criminal Practice
False Statement on Passport Application Is Not Required to Be Materially False
U.S. v. Hasan
U.S. DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
Evidence
Expert's Testimony Is Limited To Experiences With Holding Area Handcuffs
Golio v. City of White Plains
NEW YORK COUNTY
Insurance Law
Insurer's Failure to Disclaim in Timely Manner Does Not Create Coverage Where None Existed
Neighborhood Partnership Housing v. Certain Underwriters
November 18, 2009
NEW YORK COUNTY
Civil Practice
Protective Order to 10 of 13 Statements in Notice To Admit Granted as Issues of Fact are Contested
Franklin v. Beth Israel Medical Center
NEW YORK COUNTY
Landlord/Tenant Law
Court Accepts Tenants' Interpretation of Lease Granting Them Right to Cancel Last 12 Months
Sohmer v. Butts
NEW YORK COUNTY
Real Property
No Agreement by Parties on Essential Terms To Form Contract Found for Which Enforcement Sought
Clark Construction Corp. v. BLF Realty Holding Corp.
NASSAU COUNTY
Attorney's Fees
Client Granted Judgment of Two-Thirds of Flat Fee Agreement Against Attorney Discharged for Cause
Felix v. Law Office of Thomas F. Liotti
APPELLATE DIVISION
THIRD DEPARTMENT
Contracts
Court Finds Fair Interpretation of Evidence Shows Agreement Between Parties Was Fair, Reasonable
Kallman v. Krupnick
U.S. DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
Civil Practice
Court Lacks Jurisdiction; People's Republic Of China Is Entitled to Sovereign Immunity
Gloria Bolanos Pons v. People's Republic of China
APPELLATE DIVISION
THIRD DEPARTMENT
Government
Free With Registration: Organizer of 'Club' Deriding Coworker Properly Fired, Panel Concludes
Matter of Sindoni v. County of Tioga
U.S. DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
Alternative Dispute Resolution
Confirming Award Advances Goals of Convention; To Recognize, Enforce Foreign Arbitral Awards
China National Chartering Corp. v. Pactrans Air & Sea Inc.
U.S. DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
Employment
Terminated Nurse Fails to Show That Alleged Harassment Was Sufficiently Severe, Pervasive
Hill v. Kaleida Health
NEW YORK COUNTY
Torts
TA's Alleged Violation of Guidelines Raises Issues Of Liability; Dismissal of Patron's Complaint Denied
Bonzon v. City of New York
NASSAU COUNTY
Civil Practice
Attorney Fails to Meet Burden to Dismiss Defamation Claim Under CPLR §3211(a)(1), (7)
Gallina v. Abelove
November 17, 2009
KINGS COUNTY
Family Law
Modification of Father's Child Support Denied; Court Lacks Subject Matter Jurisdiction of Custody Motion
Y.G. v. A.T.
NEW YORK COUNTY
Torts
Independent Contractor Owed No Duty to Tenant; Claim for Injuries Sustained in Shower Is Dismissed
Bone v. City of New York
NEW YORK COUNTY
Civil Practice
Court Lacks Jurisdiction, Denies Motion to Dismiss; Cross-Motion to Transfer to Court of Claims Granted
Comical Entertainment Corp. v. City University of New York
RICHMOND COUNTY
Family Law
Findings of Sexual Abuse, Neglect Made Against Father; Derivative Neglect Findings Against Mother
Matter of Candice D. v. Donna J.
KINGS COUNTY
Labor Law
Defendants' Recalcitrant Worker Defense Rejected; Court Grants Worker Judgment on §240(1) Claim
Quiles v. City of New York
NASSAU COUNTY
Landlord/Tenant Law
Court Denies Tenant's Motion to Reargue, Finds No Right to Trial De Novo After Grievance Hearing
Town of Oyster Bay Housing Authority v. Schwartz
U.S. DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
Attorney's Fees
$12 Million Settlement Reasonable; Class Counsel's Fee Reduced to $1.8 Million From $3.24 Million
Hall v. The Children's Place Retail Stores Inc.
U.S. DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
Criminal Practice
Sentence for Heroin Conspiracy Denied §2255 Relief; Charges, Plea Consequences Explained; Waiver Noted
United States v. Yeboah
U.S. COURT OF APPEALS, SECOND CIRCUIT
Criminal Practice
Free With Registration: Prosecutors Who Fail to Disclose Evidence Obtained Post-Trial Held Protected by Absolute Immunity
Warney v. Monroe County
U.S. DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
Employment
Fact Issue Exists Whether Law Firm Complied With Settlement to Give Recommendation Letter
Memnon v. Clifford Chance US, LLP
U.S. DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
Criminal Practice
By Not Renewing Application, Inmate Failed to Show He Is Indigent, Entitled to Appellate Counsel
Mackenzie v. Marshall
U.S. DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
Civil Practice
Permissive Intervention Allowed in Class Action Over Injured Seamen's Unpaid Overtime Wages
Padilla v. Maersk Line Inc.
U.S. DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
Social Services Law
Disability Benefits Denial Upheld; Plaintiff Able To Perform Certain Jobs, Not Disabled Under Act
Eckert v. Astrue
November 16, 2009
NEW YORK COUNTY
Criminal Practice
Defendant's Constitutional Rights Not Violated; Suppression of Checkpoint Evidence Is Denied
People v. Castiner
NASSAU COUNTY
Civil Practice
Affidavit Is Considered as Counsel Offers Valid Excuse for Not Identifying Expert Before Filing
PG&D Realty v. Commonwealth Land Title Ins. Co.
NEW YORK COUNTY
Attorney's Fees
Client's Alleged Inability to Pay Not a Meritorious Defense to Attorney's Claim for Breach of Contract
Angel v. Greenhaus
NEW YORK COUNTY
Legal Profession
Legal Malpractice Suit Against Attorney Dismissed Based on Client's Allocution of Satisfaction
Harvey v. Greenberg
NEW YORK COUNTY
Civil Practice
Husband's Motion to Quash Subpoenas, Previously Ruled Overly Broad and Narrowed by Court, Granted
Leopold v. Leopold
SUFFOLK COUNTY
Real Property
Court Finds Federal Law Inapplicable to Private Right of Action to Non-Federally Related Loans
Collado v. Boklari
U.S. DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
Civil Practice
Decision Enforcing Scheduling Order Affirmed; 'Good Cause' for Noncompliance Is Not Shown
Sokol Holdings Inc. v. BMB Munai Inc.
U.S. DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
Employment
Prima Facie Case of FMLA Leave Denial Not Proven; Firing Arose From Probe Unrelated to Child's Autism
Beligotti-Fenti v. Paychex Inc.
U.S. DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
Criminal Practice
Rule 33 Relief in Racketeering Case Denied Where Relief Based on Documents in Prior Extortion Case
United States v. DiPietro
U.S. DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
Civil Practice
Fraud on Court Claim Rejected; Civil Rights Claimant Lacked Information to Timely Amend, Serve Complaint
Wilson v. City of New York
U.S. COURT OF APPEALS, SECOND CIRCUIT
Immigration Law
'Credible Fear' Hearing Record Can Be Considered When Assessing Asylum Seeker's Credibility
Zhang v. Holder
APPELLATE DIVISION
THIRD DEPARTMENT
Government
Free With Registration: Presumption of Good Faith in Investigation of Pension Fraud Supports Subpoenas of Attorneys' Work Records
