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Entries by Bruce Freeman

Transfer to Another County for Probation Did Not Divest Sentencing Court of Jurisdiction Over Defendant’s Violation of His Intermittent Sentence​

In this case Columbia County Court sentenced defendant to intermittent imprisonment in the Columbia County jail and five years probation in Greene County where defendant resided.  After defendant failed to report to Columbia County Jail, County Court revoked the intermittent sentence and sentenced defendant to four months. Defendant contended Columbia County Court had relinquished jurisdiction […]

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Expert Evidence About a “Date Rape” Drug Not Implicated in the Trial Did Not Require Reversal; Jury Deemed to Have Considered Only Evidence Supported by the Record​

In a full-fledged opinion by Justice Saxe, the First Department upheld the conviction for rape and for facilitating a sex offense with a controlled substance.  The controlled substance referenced in the indictment and the subject of proof at trial was ecstasy.  However, expert evidence of the effects of another drug, GBH, was allowed in at […]

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Defense Counsel Deemed Ineffective/Failed to Examine Evidence

The First Department determined defense counsel was ineffective (requiring a new trial) because he emphasized the difference between the Ziploc bags (containing drugs) the defendant was alleged to have sold to an undercover officer and the bags which were in defendant’s possession upon his arrest without ever comparing them.  When the jury asked to see […]

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Defendant Did Not Demonstrate Plaintiff was Special Employee​

The Second Department determined the defendant did not demonstrate plaintiff was its special employee and therefore plaintiff was not restricted to Workers’ Compensation as his remedy: In determining whether a special employment relationship exists, a court should consider factors such as the right to control the employee’s work, the method of payment, the furnishing of […]

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Question of Fact About Whether Release Procured by Fraud or Duress

In upholding the denial of defendant’s (Countrywide’s) motion for summary judgment based upon the execution of a release, the Second Department determined that the allegations of fraud and duress in procurement of the release raised a question of fact:  The Countrywide defendants’ motion was properly denied. Although the plaintiff’s execution of the release in favor […]

Theory of Damages in Contract Action​

The Second Department explained the theory underlying damages for breach of contract and noted that damages are usually ascertained as of the date of the breach: It has long been recognized that the theory underlying damages for breach of contract is to make good or replace the loss caused by the breach… . Damages are […]

Unambiguous Release Is a Jural Act of High Significance Which Must Be Enforced

In explaining the legal principles underlying the enforcement of releases, the Second Department wrote: Public policy favors the enforcement of settlements …, and a release is “a jural act of high significance without which the settlement of disputes would be rendered all but impossible” ….. Generally, a valid release constitutes a complete bar to an […]

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Civil Versus Criminal Contempt Explained in Context of Imposition of Fines or Monetary Penalties

In a divorce proceeding plaintiff sought a contempt finding and the imposition of monetary penalties or fines in connection with defendant’s failure to comply with a court order.  The Second Department explained the principles underlying civil versus criminal contempt as follows: “[U]nlike fines for criminal contempt where deterrence is the aim and the State is […]

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Subpoena Can Not Be Used for Discovery Purposes​

The Second Department noted that a subpoena duces tecum may not be used for discovery purposes: “[A] subpoena duces tecum may not be used for purposes of discovery or to ascertain the existence of evidence”…. Here, the subpoena duces tecum served by the defendants improperly sought production of certain materials that the defendants had failed […]

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Expert’s Affidavit Should Have Been Considered in Summary Judgment Motion Even though Expert Had Not Been Disclosed​

In a slip and fall case, the defendant moved for summary judgment.  Because the plaintiff’s expert had not been previously disclosed, Supreme Court refused to consider the expert’s affidavit.  In reversing, the Second Department wrote:  “[A] party’s failure to disclose its experts pursuant to CPLR 3101(d)(1)(i) prior to the filing of a note of issue […]

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