NYS Court of Appeals Leaves 4th Dept Decision Recognizing Canadian Gay Marriage In Place

NY Sun (Joseph Goldstein): Court Decision Is Victory For Gay Marriage Backers

Gay marriage advocates have won a partial victory in New York, as the state’s highest court has left in place a lower court ruling that recognized a lesbian couple as being married. The Court of Appeals declined yesterday to review the mid-level appellate court’s decision to recognize the couple’s Canadian marriage, the first such ruling by an appellate court in New York State. For now, that lower court decision remains binding across the state. In 2006, the state’s Court of Appeals found that there was no right to same-sex marriages under the state constitution, leaving unanswered the question of whether the state would recognize same-sex marriages and civil unions performed in other states and abroad.

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Democrat and Chronicle (Gallagher and Craig): County at crossroads over same-sex benefits lawsuit

The state’s highest court Tuesday sent back to a lower court a case involving whether Monroe County has to recognize a marriage between two women, leaving the county to determine whether to continue its appeal challenging same-sex marriage. The Court of Appeals refused to hear the case of Patricia Martinez, an employee of Monroe Community College, who sued the county after it refused to grant benefits to Martinez’s female partner, Lisa Ann Golden, whom she married in Canada in 2004. The state Supreme Court ruled initially that they were not entitled to benefits, but that was overturned 5-0 by the mid-level Appellate Division, Fourth Department, of the state Supreme Court

FINDLAW: Daily Opinion Summaries for New York Court of Appeals - 05/06/08

ADMINISTRATIVE LAW, EVIDENCE, LANDLORD TENANT LAW, PROPERTY LAW & REAL ESTATE

In the Matter of IG Second Generation Partners L.P. v. New York State Div. of Hous. and Cmty. Renewal, No. 67
In an appeal addressing whether the Division of Housing and Community Renewal (DHCR) had the authority to cancel rent arrears owed by a rent-stabilized tenant as a result of DHCR’s resolution of an unusually protracted fair market rent appeal, the court of appeals rules that DHCR did not have the authority under the circumstances of this case.

 

 

COMMERCIAL LAW, CONSUMER PROTECTION LAW, CONTRACTS, CORPORATION & ENTERPRISE LAW, EVIDENCE, INJURY AND TORT LAW

Pludeman v. N. Leasing Sys., Inc., No. 64
The court of appeals rules that plaintiffs sufficiently pleaded a cause of action for fraud against individually-named corporate defendants pursuant to CPLR 3016(b) where it was not unequivocal, as a matter of law, that a finder of fact could not reasonably infer the requisite knowledge or participation by the individual defendants in an act of fraud.

 

 

CRIMINAL LAW & PROCEDURE, EVIDENCE

People v. Umali, No. 66
Conviction for manslaughter in the first degree is affirmed where: 1) precluding defendant from speaking to counsel about his testimony during a trial recess did not deprive his right to counsel, as the ban on attorney-client communication was rescinded promptly after defendant’s protest; 2) the jury charge as a whole accurately stated that the government had to disprove the justification defense beyond a reasonable doubt; and 3) defendant’s remaining contentions were either unpreserved, meritless, or harmless.

FINDLAW: Daily Opinion Summaries for New York Court of Appeals - 05/01/08

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.
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. 

FINDLAW: Daily Opinion Summaries for New York Court of Appeals - 04/29/08

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.

FINDLAW:Daily Opinion Summaries for U.S. Supreme Court - 4/28/08

CONSTITUTIONAL LAW, ELECTIONS, GOVERNMENT LAW

Crawford v. Marion County Election Bd., No. 07-21, 07-25
In a suit challenging the constitutionality of an Indiana law requiring citizens voting in person to present photo identification issued by the government, a judgment upholding the law is affirmed where the evidence in the record was not sufficient to support a facial attack on the validity of the entire statute.

FINDLAW: Daily Opinion Summaries for New York Court of Appeals - 04/24/08

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. 

FINDLAW: Daily Opinion Summaries for U.S. Supreme Court - 04/23/08

CRIMINAL LAW & PROCEDURE, EVIDENCE

Virginia v. Moore, No. 06-1082
In a case raising the issue of whether a police officer violates the Fourth Amendment by making an arrest based on probable cause but prohibited by state law, the Supreme Court rules that warrantless arrests for crimes committed in the presence of an arresting officer are reasonable under the Constitution, and that while states are free to regulate such arrests however they desire, state restrictions do not alter the Fourth Amendment’s protections.

The Supreme Court has ruled that police can conduct searches and seizures of evidence after arrests that sometimes violate state law.

FINDLAW:Daily Opinion Summaries for U.S. Supreme Court - 4/16/08

CONSTITUTIONAL LAW, CRIMINAL LAW & PROCEDURE, SENTENCING

Baze v. Rees, No. 07–5439
Kentucky’s lethal injection protocol used as its method of execution does not violate the Eighth Amendment’s ban on cruel and unusual punishments. (Five concurring opinions and dissent)

 

CRIMINAL LAW & PROCEDURE, SENTENCING

Burgess v. US, No. 06-11429
The term “felony drug offense” contained in the Controlled Substances Act’s (CSA), 21 U.S.C. section 841(b)(1)(A), provision for a 20-year minimum sentence, is defined exclusively by section 802(44) and does not incorporate section 802(13)’s definition of “felony.” Consequently, a state drug offense punishable by more than one year qualifies as a “felony drug offense,” even if state law classifies the offense as a misdemeanor. 

FINDLAW:Daily Opinion Summaries for U.S. Supreme Court - 4/15/08

ADMINISTRATIVE LAW, CIVIL PROCEDURE, CONSTITUTIONAL LAW, GOVERNMENT LAW, TAX LAW

US v. Clintwood Elkhorn Mining Co., No. 07-308
The plain language of 26 U.S.C. sections 7422(a) and 6511 requires a taxpayer seeking a refund for a tax assessed in violation of the Export Clause, just as for any other unlawfully assessed tax, to file a timely administrative refund claim before bringing suit against the government.
CONSTITUTIONAL LAW, CORPORATION & ENTERPRISE LAW, GOVERNMENT LAW, M&A, TAX LAW

MeadWestvaco Corp. v. Illinois Dep’t of Revenue, No. 06-1413
In a case raising the issue of whether Illinois constitutionally taxed an apportioned share of the capital gain realized by Mead, an out-of-state corporation, on the sale of one of its business divisions, Lexis/Nexis, a judgment in the state’s favor is vacated and remanded where: 1) the state courts erred in considering whether Lexis/Nexis served an “operational purpose” in Mead’s business after determining that Lexis and Mead were not unitary; and 2) an alternative ground for affirmance was neither raised nor addressed in the state courts, and thus, would not be considered.

Massachusetts Supreme Judicial Court Oral Arguments

Commonwealth v. Ora

First Amendment– The Commonwealth is appealing a District Court order allowing a defendant’s motion to dismiss a criminal complaint for open and gross lewdness where the judge ruled that the defendant’s nude dancing was protected by the First Amendment.

Enjoy commentary by Robert Ambrogi.

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For more oral arguments before the SJC.

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