When is an error of law grounds for an appeal?

When you go through the trial process, you count on the professionals to make the right decision. Even if the verdict is not in your favor, you hope that they will be able to apply the law correctly to the facts of your case.

The courtroom, however, is full of people, and people make mistakes. Whether you are facing a judge or a jury, there is a chance that the people who decided your case made a mistake when it was time to apply the law to the facts.

What is a mistake of fact?

Every story has at least two sides. As you go through the trial process, it can seem like there are a lot more than two sides to a story that originally was simple.

As both sides present the facts of your case, it can seem like you are telling very different stories, but it is up to the judge or jury to decide how the law applies to what happened. Sometimes, while the judge or jury is deciding your case, they will misunderstand the facts.

Second Department Rules That Even On A Friday, "Overnight Delivery" Means Exactly That

While many issues connected to the service of litigation papers under the CPLR have been lessened by the advent of electronic filing, some issues remain. Surprisingly, one such issue appears to have been the proper effectuation of service upon counsel via overnight mail.

CPLR 2103(b), which governs service upon an attorney, provides various avenues for such service. One alternative, under CPLR 2103(b), is to serve "by dispatching the paper to the attorney by overnight delivery service" (see, CPLR 2103[b][6]). The statute defines an "overnight delivery service" as "any delivery service which regularly accepts items for overnight delivery to any address in any state." When using overnight delivery, one business day is added to the prescribed period.

Understanding a lawyer's conflict of interests

Though the American Bar Association has rules dealing with lawyer's conflicts on interests, the exact phrase has not been defined. However, when New Yorkers hear the term, one immediately forms negative associations and rushes to judgment against the lawyer in question. But the truth is that not all conflicts of interests disqualify a lawyer or leave them open to disciplinary procedures. Rules exist for this very reason -- to protect clients.

A covered attorney is not allowed to represent a client if the lawyer has a conflict with another client. Termed as a concurrent conflict of interest, it refers to situations where representation will adversely affect another client. In addition, it could be a situation where that representation will materially limit the lawyer's ability to represent another client, a former client or a third-person.

Appellate court upholds punitive damages in a medical malpractice case based upon a physician's destruction of medical records.

In what appears to be a case of first impression in this state, the Appellate Division, Second Judicial Department, has upheld an award of punitive damages in a medical malpractice case, based upon a physician's destruction of medical records. 

The case in question, Gomez v. Cabatic (159 AD3d 62), involved a six-year-old girl who died because of her physician's failure to diagnose and treat her diabetes. The doctor admittedly destroyed handwritten notes which were part of the child's medical records, but claimed that the notes had been fully transcribed before being destroyed.

NY Lawyers Eye Impact of New Statewide Appellate Rules

The approval of new statewide rules for the New York Supreme Court Appellate Division, one of which reduced from nine months to six the period for perfecting appeals, is expected to result in the automatic dismissal of a passel of civil appeals not perfected by Sept. 14. 

New Rules - On Guard!

While most conscientious appellate practitioners have long-since set a calendar alert for September 17, 2018, marking the effective date for the sweeping changes ushered in by the new "Practice Rules of the Appellate Division" (22 NYCRR Part 1250), most trial practitioners remain blissfully ignorant of exactly how much the landscape will change at the appellate level.

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Notable Civil Decisions

  • November 7, 2018M&H Wins Reversal of Summary Judgment and Reinstatement of Action Against Owner of Long Island Office Building
  • October 24, 2018M&H Wins Reversal of Four Judgments of Foreclosure and Sale Concerning Brooklyn Commercial Real Estate
  • April 4, 2018M&H Wins Reversal of Judgment Awarding Approximately $2.5 Million In Damages Resulting From The Issuance Of A Preliminary Injunction And Imposing Sanctions
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Notable Criminal Decisions

  • October 22, 2015M&H wins reversal of manslaughter conviction and dismissal of the charge from New York’s highest court
  • October 22, 2015M&H wins reversal of manslaughter conviction and dismissal of the charge from New York’s highest court
  • October 22, 2015M&H wins reversal of manslaughter conviction and dismissal of the charge from New York’s highest court
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