Update from the Lexis Alert Service, Search run morning of December 4, 2008.
1. People v. De La Rosa, 4706, 3687N/05, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 9451; 2008 N.Y. App. Div. LEXIS 9100, December 2, 2008, Decided, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State …
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ADMINISTRATIVE LAW, IMMIGRATION LAW Diallo v. US Dept. of Justice, No. 073649 Petition for review of decision denying native citizen of Guinea asylum, withholding of removal, and relief under the Convention Against Torture (CAT), is granted where: 1) given the presence of errors in the Board of Immigration Appeals’ decision as to issues that were properly exhausted and the plausibility of other newly claimed errors, remand to the BIA would not have been futile; and 2) there were sufficient exhausted flaws in the reasoning of the Immigration Judge’s adverse credibility determination to warrant a remand, and the court could not confidently predict the same outcome if there were further agency reconsideration. Read more…
CIVIL PROCEDURE, CLASS ACTIONS, GOVERNMENT LAW, INSURANCE LAW Shady Grove Orthopedic Assoc. v. Allstate Ins. Co., No. 070141 In a class action claim for statutory penalties under section 5106(a) of New York insurance law against defendant-Allstate Insurance Company, grant of motion to dismiss is affirmed where: 1) section 901(b) of the New York Civil Practice Law and Rules may be applied in a federal court sitting in diversity jurisdiction and adjudicating claims under state law; and 2) section 5016(a) did not fall within the exception clause of section 901(b).
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.
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U.S. 1st Circuit Court of Appeals, November 26, 2008 Estate of Bennett, No. 072169 In a suit against defendant-police officers for the shooting death of decedent following gunfire initiated by decedent, judgment in favor of defendants is affirmed where: 1) the district court properly granted defendant-officer’s motion to dismiss where the estate failed to show a deprivation of a protected interest in life, liberty, or property; 2) the district court did not err in dismissal by judgment on the pleadings because plaintiff-estate did not meet its pleading requirements, plaintiff-estate waived its equal protection claim, and there was no property interest that was allegedly taken to support the takings claim; and 3) grant of summary judgment in favor of defendants was proper.
U.S. 2nd Circuit Court of Appeals, November 24, 2008 In reTerrorist Bombings of U.S. Embassies in East Africa, No. 011535, 011550, 011553, 011571, 056149, 056704 Judgments of convictions for offenses arising from involvement in an international conspiracy, led by Osama Bin Laden and organized through the al Qaeda terrorist network, to kill American citizens and destroy American facilities across the globe are affirmed and remanded for re-sentencing where: 1) the indictment was sufficient to support a conviction of a capital offense; 2) sufficient evidence supported the convictions; 3) the District Court’s application of the Classified Information Procedures Act did not violate the Constitution; 4) a severance motion was properly denied; 5) statements of co-defendants, co-conspirators, and certain third parties were properly admitted at trial; 6) the government withheld exculpatory evidence; 7) there was no merit in co-defendant’s suggestion that “cumulative error” deprived him of a fair trial; and 8) the application of certain enhancements to co-defendant’s sentencing guidelines calculation was not in error. Insofar as co-defendant’s! sentence resulted from the mandatory application of the U.S. Sentencing Guidelines, he is entitled to be resentenced pursuant to U.S. v. Fagans, 406 F.3d 138 (2d Cir. 2005). R
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U.S. 1st Circuit Court of Appeals, November 24, 2008 US v. Acosta-Roman, No. 071238, 071239
Appeal from sentence of three concurrent fifty-seven month sentences for three money laundering counts is dismissed where: 1) defendant’s waiver was both valid and enforceable as an enhacement issue; and 2) appellate consideration of that issue, on the merits, was barred.
Update from the Lexis Alert Service, Search run morning of November 27, 2008.
1. People v. Peak, 4647, 21/04, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 9259; 2008 N.Y. App. Div. LEXIS 8818, November 25, 2008, Decided, November 25, 2008, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State …
Update from the Lexis Alert Service, Search run morning of November 25, 2008.
1. People v. Cabral, 4306, 5023/06, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 7952; 55 A.D.3d 399; 865 N.Y.S.2d 588; 2008 N.Y. App. Div. LEXIS 7803, October 21, 2008, Decided, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State …
Update from the Lexis Alert Service, Search run morning of November 24, 2008.
1. People v. Richline, 4610, 3018/06, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 9163; 2008 N.Y. App. Div. LEXIS 8657, November 20, 2008, Decided, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State …
Update from the Lexis Alert Service, Search run morning of November 21, 2008.
1. People v. Witt, 4577, 1458/06, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 8984; 2008 N.Y. App. Div. LEXIS 8555, November 18, 2008, Decided, November 18, 2008, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State …
Update from the Lexis Alert Service, Search run morning of November 20, 2008.
1. People v. Brightley, 4223, 14385/89, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 8970; 2008 N.Y. App. Div. LEXIS 8531, November 18, 2008, Decided, November 18, 2008, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State …
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