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July 15, 2019 | New York Law Journal

New York's Credibility Problem: Part One

In their Burden of Proof column, David Paul Horowitz and Lukas M. Horowitz write: While Court of Appeals precedent counsels against judges making credibility determinations, in the summary judgment arena trial and appellate courts in New York appear to do just that, electing to disregard testimony deemed to be “tailored,” “feigned,” “patently false,” or “demonstrably false.”
10 minute read
October 18, 2018 | New York Law Journal

Recent Decisions Include Human Rights Law Issue of First Impression

In their Appellate Division Review, E. Leo Milonas and Andrew C. Smith write: The Justices of the Appellate Division are back for the Fall 2018 session. Although the color of the leaves change in the fall, nothing has changed for the four Appellate Division departments as they continue to churn out words of wisdom and legal scholarship.
8 minute read
July 25, 2017 | New York Law Journal

Split Panel Upholds Testimony About DNA Tests Performed by Others

A convicted burglar's constitutional right to confront witnesses was not violated by a criminalist who testified at trial about DNA tests performed by other analysts, a Manhattan appeals court ruled on Tuesday.
4 minute read
July 21, 2016 |

Court Reopens 1989 'Batman' Murder to Probe Brady Issue

A state appeals court has ordered a hearing in a decades-old murder case to determine whether a Bronx prosecutor wrongfully held back information that a witness had struck a deal with federal prosecutors before he testified.
7 minute read
February 03, 2016 |

Fiduciary Exception to Privilege in Shareholder Actions

In his Evidence column, Michael J. Hutter discusses whether a corporation and its attorneys must disclose privileged communications relevant to corporate matters to shareholder plaintiffs in actions based upon breaches by management of their fiduciary duties or other wrongdoing arising out of those matters.
11 minute read
January 12, 2016 |

Divided Court Finds Ineffective Assistance in Burglary Trial

A defense attorney's failure to request a new suppression hearing when a trial witness contradicted police testimony given at the earlier hearing constituted ineffective assistance of counsel, a divided First Department panel said Thursday.
5 minute read
December 09, 2015 |

Panel Rejects Bias Claim Despite 'Plaintiff-Friendly' Law

A unanimous First Department panel dismissed an employment discrimination claim Tuesday, saying that even under the "plaintiff-friendly" pleading standards of New York City's Human Rights Law, Jessie Cadet-Legros did not have a case against New York University Hospital Center.
4 minute read
November 13, 2015 |

Panel Reinstates Jury's Verdict of Civil Management

The First Department decision addresses judges' attempts to interpret a state Court of Appeals ruling last year, which mandated the state to prove a sex offender's serious difficulties controlling behavior separate from its demonstration of the existence of an abnormality.
4 minute read
October 09, 2015 |

Panel Adopts 'Garner' Privilege Test for Fiduciary Situations

The Appellate Division, First Department, has adopted the "Garner test" for determining whether an attorney-client privilege claimed by a corporation and its lawyers may be overcome by the "fiduciary exception."
4 minute read
April 23, 2015 |

Con Ed Has Right to Contractor's Files, Panel Finds

A judge was "too harsh" when she denied Consolidated Edison Inc.'s request for the litigation files of a contractor in the massive steam pipe explosion that rocked midtown Manhattan in July 2007, a sharply divided panel of the Appellate Division, First Department, ruled Tuesday.
3 minute read

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