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Entries by Bruce Freeman

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HERE THE RESITITUTION FOR THE VICTIM’S OUT-OF-POCKET MEDICAL EXPENSES WAS VACATED BECAUSE THE JUDGE DID NOT MAKE A RECORD SUPPORTING THE AMOUNT AWARDED (THIRD DEPT).

The Third Department, vacating the restitution for the victim’s out-of-pocket medical expenses, determined the judge failed to make a record of those expenses as required by Penal Law section 60.27: Although the restitution amount did not exceed the agreed-upon limit, the record is devoid of any hearing, colloquy or judicial determination confirming the actual out-of-pocket […]

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THE COMMISSIONER OF LABOR COULD NOT IMPOSE A NEW “RULE” WHICH HAD NEVER BEEN SUBJECT TO THE FORMAL RULEMAKING REQUIREMENTS IN THE STATE ADMINISTRATIVE PROCEDURE ACT (THIRD DEPT).

The Third Department, annulling the Department of Labor’s (DOL’s) determination, held that the Commissioner’s ruling was based upon a “rule” which had never been subject to the rule-making procedures required by the State Administrative Procedure Act. The Commissioner turned down the petitioner’s application for an O & P license (a license to own, possess and/or […]

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A NEW YORK CITY LOCAL LAW WHICH PROHIBITS THE SALE OF FOIE GRAS, A “FATTY LIVER” CREATED BY FORCE FEEDING GEESE AND DUCKS, IS NOT PRE-EMPTED BY THE AGRICULTURE AND MARKETS LAW (THIRD DEPT).

The Third Department, reversing Supreme Court, in a full-fledged opinion by Justice Mackey, determined the NYC Local Law which prohibited the sale of foe gras was not pre-empted by the Agriculture and Markets Law. Foie gras (fatty liver) is produced by force feeding geese or ducks several times a day: Foie gras, which translates to […]

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THE NYS GAMING COMMISSION RELIED ON HEARSAY TO FIND THAT PETITIONER, A RACE-HORSE TRAINER, VIOLATED A LIMIT IMPOSED ON THE AMOUNT OF A DRUG WHICH MAY BE ADMINISTERED TO A RACE HORSE; THE HEARSAY LETTERS FROM TWO LABORATORIES WHICH TESTED THE HORSE’S BLOOD CONSTITUTED INSUFFICIENT EVIDENCE OF THE VIOLATION BECAUSE THE LETTERS DID NOT DESCRIBE THE TESTING METHODS AND THE RELIABILTIY OF THOSE TESTING METHODS; MATTER REMITTED (THIRD DEPT).

The Third Department, annulling the NYS Gaming Commission’s ruling and remanding the matter for a new hearing, determined the Commission relied on hearsay to find that petitioner (a race-horse trainer) violated a rule limiting the amount of a drug (bute) which can be administered to a race horse. The petitioner brought an Article 78 proceeding […]

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PLAINTIFF DID NOT KNOW WHAT CAUSED HER TO SLIP ON A STAIRWAY STEP BUT SHE TESTIFIED SHE LOOKED FOR SOMETHING TO HOLD ONTO AND THERE WAS NO HANDRAIL; THERE WAS A QUESTION OF FACT WHETHER THE ABSENCE OF A HANDRAIL WAS A PROXIMATE CAUSE OF HER FALL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion for summary judgment in this stairway slip and fall case should not have been granted. Although plaintiff did not know what caused her to slip on the step, she testified she “wanted something to hold on to” but there was no handrail: Although the plaintiff testified […]

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ALTHOUGH THE JUDGE INFORMED DEFENDANT HE COULD BE SUBJECT TO AN ENHANCED SENTENCE IF HE DIDN’T APPEAR FOR THE PRESENTENCE INVESTIGATION INTERVIEW OR GOT INTO TROUBLE BEFORE SENTENCING, THE JUDGE DID NOT SPECIFICALLY INFORM DEFENDANT HE WOULD BE SUBJECT TO AN ENHANCED SENTENCE IF HE DID NOT APPEAR FOR SENTENCING; SENTENCE VACATED (THIRD DEPT). ​

The Third Department, vacating defendant’s sentence and remitting the matter, determined defendant was not specifically informed that his failure to show up for sentencing could result in an enhanced sentence. Therefore the enhanced sentence was vacated: In satisfaction of the indictment and other pending charges, defendant agreed to plead guilty to one count of falsely […]

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THE EXECUTIVE LAW WHICH MAKES A LANDLORD’S REFUSAL TO ACCEPT TENANTS WHO RECEIVE SECTION 8 VOUCHERS AN UNLAWFUL DISCRIMINATORY PRACTICE IS UNCONSTITUTIONAL BECAUSE, AS A RESULT OF ACCEPTING SECTION 8 FUNDS, LANDLORDS MUST SUBMIT TO UNREASONABLE SEARCHES OF APARTMENTS AND RECORDS (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Ceresia, determined Executive Law section 296(5)(a)(1) is unconstitutional. The statute makes a landlord’s refusal to rent to tenants who receive Section 8 housing vouchers an unlawful discriminatory practice. The landlords argued “the source-of-income discrimination law is unconstitutional on its face because it, in effect, requires landlords […]

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THE REQUIREMENT IN THE LONG-TERM SOLITARY CONFINEMENT ACT (HALT ACT) THAT A HEARING BE HELD WITHIN FIVE DAYS OF PLACING AN INMATE IN A SEGREGATED HOUSING UNIT (SHU) IS “DIRECTORY,” NOT MANDATORY; THEREFORE ANY ISSUE RELATED TO A DELAY IN HOLDING THE HEARING MUST BE PRESERVED FOR REVIEW AND THE INMATE MUST DEMONSTRATE PREJUDICE CAUSED BY THE DELAY (THIRD DEPT).

The Second Department, in a full-fledged opinion by Justice McShan, determined the requirement that, under the Long-Term Solitary Confinement Act (HALT Act), a disciplinary hearing be held within five days of an inmate’s placement in a segregated housing (SHU) is directory, not mandatory. Therefore the issue must be preserved for review and the inmate must […]

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THE GOVERNOR’S EMERGENCY COVID-19 TOLLS OF STATUTES OF LIMITATIONS EXTENDED THE TWO-YEAR WINDOW FOR FILING CHILD VICTIMS ACT (CVA) CAUSES OF ACTION BY 228 DAYS (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Voutsinas, determined the amendment of the Child Victims Act (CVA), which enlarged to window for filing otherwise time-barred actions, did not supersede the governor’s COVID-19 executive orders tolling statutes of limitations. Therefore two-year window for filing CVA actions was extended by the 228-day COVID-19 tolls and […]

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PURSUANT TO THE RES IPSA LOQUITUR DOCTRINE, THERE IS A QUESTION OF FACT WHETHER EPIDURAL INJECTIONS WERE DONE NEGLIGENTLY; THE FACT THAT PLAINTIFF SIGNED A CONSENT FORM WAS NOT SUFFICIENT TO WARRANT SUMMARY JUDGMENT ON THE LACK OF INFORMED CONSENT CAUSE OF ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendants’ motions for summary judgment in this medical malpractice and lack of informed consent action should not have been granted. The plaintiff raised a question of fact re: medical malpractice under the res ipsa loquitur doctrine. And the fact that plaintiff signed a consent form was not […]

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