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Entries by Bruce Freeman

Award of Primary Custody to Father Reversed

In reversing Family Court and awarding primary physical custody to the mother and visitation to the father, the Fourth Department, over a dissent, wrote: We agree with the mother and the AFC that the mother met her burden of establishing a change of circumstances. Since the original custody trial, each party has remarried and has […]

Visitation with Imprisoned Father Terminated

In affirming Family Court’s termination of visitation with the imprisoned father, the Fourth Department explained the operative principles: “An order of visitation cannot be modified unless there has been a sufficient change in circumstances since the entry of the prior order [that], if not addressed, would have an adverse effect on the child[’s] best interests” […]

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“Negligent Ownership and Maintenance” vs “Negligent Abatement” Causes of Action in Lead-Paint Case

In a lead-paint damages case, the Fourth Department determined the landlord was entitled to summary judgment on the cause of action alleging negligent ownership and maintenance (lack of notice), but was not entitled to summary judgment on the cause of action alleging negligent abatement of the hazard: To establish that a landlord is liable for […]

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Late Notice of Claim Properly Allowed

In affirming the grant of a motion to serve a late notice of claim, the Fourth Department explained the relevant principles: A notice of claim must be served within 90 days after the claim accrues, although a court may grant leave extending that time, provided that the application therefor is made before the expiration of […]

Trial Court’s Questioning Jury Whether It Had Reached a Verdict on Any Counts and Its Acceptance of a Partial Verdict Okay

The First Department determined the trial court, after several days of deliberation, properly questioned the jury whether it had reached a verdict on any of the counts and properly accepted a partial verdict: The court, which was aware of the travel plans and upcoming religious observance of some of the jurors, properly exercised its discretion […]

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People’s Expert Was Not Qualified to Testify About “Reverse Extrapolation” in DWI Prosecution/”Reverse Extrapolation” Is an Accepted Theory However

In this DWI prosecution, the Third Department determined the People’s expert was not qualified to offer testimony about “reverse extrapolation,” but that the theory itself was sound: [We reject defendant’s generalized challenge to] the  theory  of  reverse extrapolation – the process by which an expert, taking into consideration, among other  things, an individual’s known  BAC […]

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Witness’ Offering Testimony About a “Jailhouse Confession” in Unrelated Case May Constitute Brady Material

In affirming the defendant’s conviction, the Third Department determined a witness’ [Henry’s] agreement to testify about a “jailhouse confession” in an unrelated case may have constituted Brady material in defendant’s case because she also entered an agreement to testify about defendant’s “jailhouse confession.”  The Court determined reversal was not required because the potential Brady error […]

Carrier’s Video Surveillance of Employee Disallowed Because It Was Not Disclosed

The Third Department affirmed the Workers’ Compensation Board’s determination that video surveillance of the employee was properly excluded from the hearing because the existence of the surveillance by the carrier had not been previously disclosed: It is well established that an employer or carrier must disclose the existence of surveillance and investigation materials to a […]

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