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Entries by Bruce Freeman

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Causes of Action Based Upon Allegations of Violations of Martin Act Concerning Fraud in the Selling of Securities Allowed to Go Forward— Supreme Court Should Not Have Evaluated Merits on Motion to Dismiss

The First Department determined Supreme Court should not have dismissed certain Martin Act/Executive Law causes of action alleging fraud in the sale of securities brought by the Attorney General against Charles Schwab. The First Department explained that Supreme Court should not have evaluated the merits of the case in determining the motion to dismiss: The […]

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Level One Request for Information Not Justified by “Drug-Prone” Area or Defendant’s “Flight”—Seized Handgun Should Have Been Suppressed

Over a dissent, the First Department determined the facts did not justify a level one stop of the defendant by the police inside a New York City Housing Authority building and, therefore, the motion to suppress the handgun found in defendant’s pocket should have been granted. The First Department explained that a defendant’s presence in […]

Plaintiff Assumed the Risk of Injury in Martial Arts Class

In reversing Supreme Court, the First Department determined the defendant, which conducted a mixed martial arts class, was entitled to summary judgment, based on the assumption-of-risk doctrine, in an action brought by a participant in the class injured when sparring with another “stockier” student. The First Department explained the relevant legal principles: It is well […]

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Overriding Village Legislative Cap on Number of Taxicab Licenses Not a Proper Subject of Mandamus Action—Applicability of Mandamus Explained

In reversing Supreme Court, the Second Department determined the Article 78 proceeding which sought to override a legislative cap on the number of taxicab licenses which could be issued by the village was not a proper subject of a mandamus action: “The extraordinary remedy of mandamus is available in limited circumstances only to compel the […]

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Defendant Denied Constitutional Right to Present a Defense—Evidence Victim Identified Another as the Perpetrator Wrongly Excluded

In a full-fledged opinion by Justice Miller reversing defendant’s conviction, the Second Department determined defendant had been deprived of his constitutional right to present a defense.  The primary problem identified by the Second Department (among many others not mentioned here but worth reading about) was the preclusion of evidence that the victim had repeatedly identified […]

Injury from Falling Piece of Concrete-Pour-Form Raised Question of Fact About Liability Under Labor Law 240 (1)

The Second Department affirmed the denial of summary judgment in favor of defendants on plaintiff’s Labor Law 240 (1) claim. Plaintiff was removing wooden forms used to pour concrete. After removing one piece of a form, the piece above it fell and struck plaintiff. The Second Department explained: Labor Law § 240(1) requires property owners […]

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Writ of Prohibition Granted to Prevent Trial Judge from Precluding Testimony of Complainant—Complainant Would Not Release His Psychiatric Records

The First Department granted a writ of prohibition to prevent a trial judge from precluding the testimony of the complainant in a robbery case. The judge had precluded the testimony after the complainant refused to sign a HIPAA form to release his psychiatric records.  The complainant had acknowledged that he received psychiatric treatment and that […]

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Uniform Act to Secure Attendance of Witnesses from Without the State in Criminal Cases Allowed Colorado Court to Subpoena a Reporter for Purposes of Testifying About Her Confidential Sources in a Matter Related to the Aurora Movie-Theater Shootings

In a full-fledged opinion by Justice Clark, over a two-justice dissent in an opinion by Justice Saxe, the First Department determined a reporter could be compelled to testify, under Criminal Procedure Law section 640.10, in a Colorado proceeding which sought to identify law enforcement personnel who leaked information to the press.  The relevant facts are […]

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