Would the Court Nevertheless Resolve the Discrepancies? The resolution of a case often is a matter of weighing the credibility of witnesses by the trier of fact (judge or jury). But what is a Judge to do when the testimony of all of the competing witnesses raises questions of accuracy and credibility? As prologue the Court stated: “This case involves a confused tale. The witnesses’ testimonies diverged significantly. The court was not satisfied that any of the three main witnesses’ testimonies were completely accurate. Moreover, the parties presented fuzzy dates rather than exact ones. So, the recitation of the facts…below… Read more

Was Injury Claim Precluded by Pre-Accident Waiver and Release? Upon joining a health club, gym or fitness center, new members are regularly and routinely required to sign a waiver or release that exempts the owner/operator from liability for accident or injury claims by the members. But is such exculpation available where a member participates in a 300 pound tire flip class? Andrew Dinkel IV was injured on February 23, 2017, when he was struck by a truck tire being flipped during an exercise class conducted at Cobalt Fitness, LLC. His back was to the tire that was flipped by two… Read more

Court Adjudicates Conflicting Claims for Possession Almost fifty years ago, the renowned artist Alexander Calder allegedly gifted away 31 drawings. Half a century later, during which several transfers and transactions intervened, the Calder estate sought to recover the pieces from the gallery then in possession of the works. Prior to his death on November 11, 1976, Alexander Calder, a renowned artist, allegedly gifted to Alfredo Melgar thirty-one drawings. Melgar retained the drawings in his possession until July 15, 2014, when, pursuant to a consignment agreement with a gallery, Chowaiki & Co., he delivered the drawings to non-party Ezra Chowaiki for sale. Melgar… Read more

Would Court Direct Immediate Filing of Termination Statement? The Uniform Commercial Code authorizes the filing of a lien  to perfect a security interest in personal property. But, as a recent case illustrates, the Court may be called upon to adjudicate the validity of the filing/lien. A 16th century painting, entitled Portrait of Ottaviano de` Medici by the artist Andrea del Sarto, was scheduled for a UCC auction sale at Sotheby’s. Virginia Bonito challenged the validity of a UCC-1 lien filed by Ian Peck, Empire Chesapeake Holdings, LLC and Chelsea Fine Arts Holding, LLC against the painting in May 2021. Arguing… Read more

Was Kohl’s Negligent and Liable for Customer’s Injury? We have all had the experience of navigating the aisles, stands and displays that must be traversed in a department store. As a recent case illustrates, the Court was required to determine if the operator was liable when a customer tripped and fell over a mannequin stand and display. Jodi Leckie sued Kohl’s Department Stores, Inc. to recover for personal injuries she allegedly sustained as a result of a trip-and-fall accident that occurred on March 18, 2017 at the Kohl’s store located at 5000 Nesconset Highway in East Setauket, New York.  The… Read more

Was New York State Liable for Medical Malpractice/Negligence? A convict complained about lower back pain radiating into his legs and asked to be moved to a cell on the medical treatment floor to by-pass the stairs.  The request was denied and the prisoner was subsequently injured when he fell on the stairs. The convict sued. Was the State liable? On or about January 14, 2016, James Marsh was on his way to sick call at approximately 5:30-6:00 a.m. at the Sing Sing Correctional Facility from A Block, K company, 50 cell. As he descended the stairs, upon turning onto J… Read more

Was There Probable Cause for Search, Seizure and Drug Arrest? Dane Pennie, on parole after being convicted of a drug offense was stopped for a traffic violation. The police searched the car; drugs were found; the driver was charged with a drug crime–parole violation and traffic offense; prosecuted and found guilty of the parole violation but not the traffic offense; and the drug charge was not prosecuted. Pennie was incarcerated for more than a year after his arrest. Pennie sued the State of New York for false arrest and wrongful confinement that arose from the seizure of drugs by State… Read more

Was Right to Be Present “Waived” by “Acquiescence”? Those of us of a certain age remember how the 1995 murder trial of O.J. Simpson was beleaguered and delayed by the many lengthy “sidebar conferences” that were held with defense counsel by Justice Lance Ito. But who knew, as a recent case before the New York Court of Appeals demonstrates, that over time a complicated line of jurisprudence has been developed over the right of the defendant to attend the “sidebar”. When a defendant is not present at a sidebar conference where the Court actively solicits answers from a prospective juror which… Read more

Was Question Covered by Pedigree Exception to Miranda? Those of us addicted to police procedurals (Lucas Davenport, Virgil Flowers, and Harry Bosch in my case) can recite the Miranda warning from memory. But, as a recent decision by the New York Court of Appeals illustrates, there are exceptions to the rule that never appear in crime novels. The police entered an apartment pursuant to a search warrant. While in custody, but before an arrest was made and contraband was found, a police officer asked the defendant where he lived? Did the question fall within the “pedigree exception” to the Miranda rule? In May… Read more

Court of Appeals Decides If Contracts Were Nevertheless Enforceable? Whether signed before or after marriage, nuptial agreements must be acknowledged in the manner specified in the Domestic Relations Law. The Court of Appeals recently addressed two permutations of the same question: whether non-compliance with the signature acknowledgment requirements of DRL section 236(B)(3) rendered a nuptial agreement irrevocably unenforceable? Anderson examined whether the acknowledgment must be contemporaneous with the signing of the agreement to comply with section 236(B)(3). The Court concluded that the signature must be acknowledged contemporaneously within a reasonable time of signing. Because in Anderson the wife signed and acknowledged the agreement… Read more