Court Decisions

December 18, 2008

New York Supreme Court Appellate Division First Department Criminal Cases Originating from the New York Supreme Court NY County. December 18, 2008.

Update from the Lexis Alert Service, Search run morning of December 18, 2008.

1. People v. Pauling, 4832, 2218/05, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 9837; 2008 N.Y. App. Div. LEXIS 9455, December 16, 2008, Decided, December 16, 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 …

December 17, 2008

Findlaw Case Summaries: Criminal Law and Procedure 5

by David Badertscher

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U.S. 1st Circuit Court of Appeals, December 11, 2008 Dutil v. Murphy, No. 06-2292 The text of the Massachusetts SDP statute, as interpreted by state courts, does not on its face violate the due process protections heretofore afforded sexually dangerous persons subject to civil commitment. Appellant’s due process rights are not violated by the statute’s failure to provide an unambiguous timeline for a redetermination of his sexual dangerousness.

U.S. 1st Circuit Court of Appeals, December 11, 2008 US v. Poellnitz, No. 07-2774 District court did not commit plain error in accepting Defendant’s allegedly involuntary guilty plea, and committed no error in failing to credit defendant for the value of the property that he returned to his victim. Conviction and sentence for wire fraud are affirmed..

December 17, 2008

Findlaw Case Summaries Constitutional Law December 8-12, 2008

by David Badertscher

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U.S. 1st Circuit Court of Appeals, December 11, 2008 Dutil v. Murphy, No. 06-2292 The text of the Massachusetts SDP statute, as interpreted by state courts, does not on its face violate the due process protections heretofore afforded sexually dangerous persons subject to civil commitment. Appellant’s due process rights are not violated by the statute’s failure to provide an unambiguous timeline for a redetermination of his sexual dangerousness. .

U.S. 1st Circuit Court of Appeals, December 11, 2008 Broadley v. Hardman, No. 08-1342 Absent any allegation that state officials were used to enforce the process, Defendant was not transformed into a state actor for section 1983 purposes when he issued a subpoena commanding the Plaintiff to appear at a pretrial deposition, even though the subpoena was issued in his capacity as a notary public and in the name of the state of Rhode Island.

December 17, 2008

New York Supreme Court Appellate Division First Department Cases Originating from the New York Supreme Court NY County. December 17, 2008.

by David Badertscher

Update from the Lexis Alert Service, Search run morning of December 17, 2008.

1. People v. Danvers, 4244, 4703/05, 4245, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 7745; 55 A.D.3d 362; 864 N.Y.S.2d 770; 2008 N.Y. App. Div. LEXIS 9179, October 14, 2008, Decided, October 14, 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 …

December 15, 2008

New York Supreme Court Appellate Division First Department Criminal Cases Originating from the NY Supreme Court NY County. December 15, 2008.

by David Badertscher

Update from the Lexis Alert Service, Search run morning of December 15, 2008.

1. People v. Mears, 4384, 4854/03, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 8021; 55 A.D.3d 439; 866 N.Y.S.2d 75; 2008 N.Y. App. Div. LEXIS 7858, October 23, 2008, Decided, October 23, 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 …

December 11, 2008

New York: U.S. v Spargo

by David Badertscher

Findlaw Breaking Legal Document, December 10, 2008:

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Former New York Judge Indicted for Attempted Extortion and Bribery

December 11, 2008

New York Supreme Court Appellate Division First Department Criminal Cases Originating from the New York Supreme Court NY County. December 8 & 11, 2008.

by David Badertscher

Update from the Lexis Alert Service, Search run morning of December 8 & 11, 2008.

1. People v. Torain, 4746, 6001/06, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 9485; 2008 N.Y. App. Div. LEXIS 9175, December 4, 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 …

December 4, 2008

New York Supreme Court Appellate Division First Department Criminal Cases Originating from the New York Supreme Court NY County. December 4, 2008.

by David Badertscher

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 …

December 3, 2008

Findlaw Case Summaries: Second Circuit U.S. Court of Appeals 2

by David Badertscher

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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).

December 3, 2008

Findlaw Case Summaries: New York State Court of Appeals. November 25 and December 2, 2008.

by David Badertscher

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.