The RCBA Journal Legal News Blog

n the Matter of Gabriela A., No. 41 
The Appellate Division properly reversed the Family Court’s dispositional order which found the juvenile, who was already designated as a “person in need of supervision” (PINS), to be a juvenile delinquent, and placed in a secure facility, where: 1) the Appellate Division found that the juvenile’s resistance to being returned to the non-secure facility fell within the bounds of acting “beyond the lawful control of … lawful authority” rather than Penal Law section 195.05; and 2) this finding more nearly comports with the weight of the evidence.

The lower court properly dismissed an entire case involving a banking transaction between a Dubai bank and a partnership headquartered in Saudi Arabia, because of the inconvenience of the forum, where: 1) the rule against dismissing a complaint sua sponte on forum non conveniens grounds did bar the dismissal here because the issue was briefed and argued; and 2) on this record, Supreme Court was corrects as a matter of law in dismissing both the complaint and the third-party complaint.

The People did not meet their CPL 30.30 speedy trial obligation to be timely ready for trial and, as a result, the misdemeanor information should be dismissed.

Dismissal of an action brought by plaintiff-union member seeking damages from defendant-union for breach of the duty of fair representation is affirmed, where the Appellate Division properly relied on Martin v Curran (303 NY 276 [1951]) in determining that dismissal was proper because the complaint failed to allege that defendant-union’s conduct was ratified by “every single member” of the association.

Defendant’s conviction of first-degree manslaughter is affirmed, where the trial judge did not err in refusing to instruct the jury on second-degree manslaughter in addition to first-degree manslaughter, because the record does not reasonably support that defendant acted with mere recklessness.

In an action brought by plaintiff-labor union against defendant-transit authority alleging that its Station Supervisor Level One members were being paid a lower base salary than their claimed counterparts, Station Supervisor Level Two, for the same type of work, the lower court’s denial of defendant’s motion to dismiss is reversed, where: 1) Civil Service law section 115 states a policy only and does not confer a private right of action; and 2) the equal protection claims must be dismissed, because plaintiff freely negotiated and executed the collective bargaining agreement that contained lower wage rates for plaintiff’s members and, to the extent an equal protection claim can be raised, it must be asserted by the employees subjected to the alleged discriminatory conduct.

In a dispute between plaintiffs and their attorney regarding attorney fees following their success in a civil rights action under the New York City Human Rights Law in which plaintiffs’ attorney was awarded statutory fees at the trial and appellate level, the lower courts’ enforcement of the retainer agreements and adoption of the attorney’s calculation of fees thereunder, are: 1) modified as to the fees for trial work, where absent a contract term expressly providing for a different distribution, an attorney is entitled to the greater of either the contingency fee or the statutory award; but 2) affirmed as to the fees for appellate work, where, in light of their unequivocal terms, the Appellate Agreements should be enforced as written.

n four cases involving criminal appeals that were not pursued for more than a decade after the filing of a notice of appeals, the Appellate Division’s dismissal of the appeals on the People’s motion are: 1) affirmed in the cases of People v. Perez, People v. Calaff and People v. Dockery, where the dismissals did not violate those defendants’ constitutional rights and were proper exercises of discretion; but 2) reversed and remitted as to the case, People v. Lopez, so that counsel can be appointed to represent defendant Lopez in opposing the dismissal of his appeal.

The denial of petitioners’ motion to quash subpoenas which sought information for plaintiff’s California fraud action against defendant for allegedly selling plaintiff counterfeit wine is affirmed, where: 1) the subpoenas here plainly satisfy the notice requirement; and 2) the Appellate Division applied the correct standard when it held that the trial court did not abuse its discretion in denying petitioners’ motion on the ground that they failed to meet their burden of establishing that their deposition testimonies were irrelevant to the California action.

In an action challenging defendants’ calculation of petitioner’s pension benefits, the lower courts’ grant of the petition is reversed, where: 1) petitioner’s pension is defined in its entirety by Retirement and Social Security Law section 504-a(c)(2); and 2) as a result, defendant New York City Employees’ Retirement System (NYCERS) properly did not consider petitioner’s previous civilian service with the New York City Department of Environmental Protection (DEP) when calculating his pension benefit.