June 26, 2008

Appellate Division, Fourth Department Case Summaries: June 26, 2008

Appellate Division, Fourth Department



People v. Washington


Appealed from Supreme Court, Erie County

Background: A jury convicted the defendant of forgery, petit larceny and false personation. At issue in this appeal is whether a police station property log is a written instrument within the meaning of Penal Law [section]170 so as to sustain the forgery conviction. The defendant argues the evidence is legally insufficient to support the forgery charge.

Ruling: A property log is the equivalent of a property receipt and is not used for the purpose of establishing identity. No advantage was gained by the false signature. As such, the conviction for forgery is reversed.

Kristin M. Preve of The Legal Aid Bureau of Buffalo for the appellant, and Matthew B. Powers, assistant district attorney, for the respondent



Buchwald v. Verizon New York Inc.


Appealed from Supreme Court, Erie County

Background: The plaintiff brought suit against Verizon for personal injuries suffered on Verizon's property. Verizon settled with the plaintiff and sought contribution from Nortel, which moved to dismiss the cause of action that sought contribution. This motion was denied and appeal followed.

Ruling: The court reverses and grants the motion for summary judgment. Nortel established that the claim is barred by General Obligations Law [section]15-108(c) due to Verizon's settlement. Verizon failed to raise a triable issue of fact.

Dennis R. McCoy of Hiscock & Barclay LLP for the appellants, and Cornelius J. Lang of Ziller, Marsh & Lang LLP for the respondent

'Brady' Material

New Evidence

People v. Broadnax


Appealed from Supreme Court,Onondaga County

Background: The defendant was convicted of murder and criminal possession of a weapon. In this appeal, the defendant claims the prosecution violated the Brady rule by not disclosing a witness' statement as to a conversation between the defendant and his uncle overheard when the defendant stated he acted in self-defense.

Ruling: The court rules that, since the defendant was provided with the uncle's statement to the police in this same regard, the potential witness was not Brady material since possession of the statement would have revealed no new information. The conviction is affirmed.

Robert P. Rickert of the Legal Aid Society for the appellant, and Victoria M. White, assistant district attorney, for the respondent

Bill of Particulars

Summary of Judgment

Abbotoy v. Kurss


Appealed from Supreme Court, Erie County

Background: This appeal centers around the purpose of a bill of particulars. The defendant, in this medical malpractice action arising out of injuries to the plaintiffs' child during pregnancy, moved for summary judgment but the plaintiffs' expert raised triable issues of fact precluding summary judgment. The defendant appeals.

Ruling: The court rejects the defendant's contention that he is entitled to partial summary judgment as to the elements of the allegations in the bill of particulars not specifically addressed by the plaintiffs' experts. A bill of particulars is not a pleading but an expansion of one. The judgment is affirmed.

Kathleen M. Sweet of Gibson, McAskill & Crosby LLP for the appellant, and Richard P. Valentine of Hamsher & Valentine for the respondents

Service of Process


Brown v. Wilson Farms Inc.


Appealed from Supreme Court, Monroe County

Background: The motion of the plaintiff pursuant to CPLR 306-b, to extend the time in which to serve the defendants, was granted. The appellant contends this was an improvident exercise of judicial discretion.

Ruling: The trial court providently exercised its discretion in extending the time. The plaintiff was diligent in attempting service and, since the suit was filed on the expiration of the statute of limitations, denying the motion would have been fatal to the plaintiff's cause of action.

Dennis P. Hamilton of Dixon & Hamilton LLP for the appellants, and Joseph S. Cote of Cote, Limpert & Van Dyke LLP for the respondent.

Originally published by Daily Record Staff & Wire Reports.

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