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Entries by Bruce Freeman

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ALTHOUGH THE JUVENILE DELINQUENCY PETITION WAS PROPERLY DISMISSED BECAUSE THERE WAS NO NONHEARSAY EVIDENCE OF THE IDENTITY OF THE ASSAILANT, IT WAS AN ABUSE OF DISCRETION TO DISMISS THE PETITION WITH PREJUDICE (THIRD DEPT). ​

The Third Department, reversing (modifying) Family Court, agreed the hearsay evidence identifying respondent as the assailant was not sufficient to support the juvenile delinquency petition, the petition should not have been dismissed with prejudice: … Family Court abused its discretion in dismissing the petition with prejudice. “Where a petition is dismissed as jurisdictionally defective, dismissal […]

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PLAINTIFF WAS STRUCK BY A FALLING BEAM WHICH SHOULD HAVE BEEN SECURED; PLAINTIFF WAS NOT OTHERWISE PROTECTED FROM FALLING OBJECTS; PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on the Labor Law 240(1) cause of action. Plaintiff was struck by a falling beam which should have been secured. The fact that plaintiff did not know where the beam came from did not preclude summary judgment: Plaintiff’s proof showed that the […]

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DEFENDANT’S STATEMENT WAS SUPPRESSED ON APPEAL, BUT THE FOURTH DEPARTMENT HELD THE ERROR WAS HARMLESS; THE COURT OF APPEALS DETERMINED THE FOURTH DEPARTMENT’S HARMLESS-ERROR FINDING WAS NOT SUPPORTED BY THE RECORD (CT APP).

The Court of Appeals, reversing the Fourth Department, in a full-fledged opinion by Judge Garcia, determined the Fourth Department should not have concluded the failure to suppress defendant’s statement was harmless error. Defendant pled guilty with the intention of appealing the denial of his suppression motion: … [T]he Appellate Division held that defendant’s statement should […]

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THE TRIAL JUDGE ERRED IN FAILING TO INSTRUCT THE JURY ON THE JUSTIFICATION DEFENSE TO THE MURDER CHARGE; THAT FAILURE ALSO MAY HAVE TAINTED THE CRIMINAL-POSSESSION-OF-A-WEAPON CONVICTION, WHICH REQUIRES THE INTENT TO USE THE WEAPON UNLAWFULLY (CT APP). ​

The Court of Appeals, reversing defendant’s murder and criminal possession of a weapon convictions, in a full-fledged opinion by Judge Garcia, determined the judge erred by failing to instruct the jury on the justification defense. The victim threatened defendant with a razor just before shooting. The Court of Appeals noted that if the shooting was […]

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DEFENDANT DOCTOR’S EXPERT’S AFFIDAVIT IN THIS MEDICAL MALPRACTICE ACTION DID NOT ADDRESS ALL THE ALLEGATIONS IN THE BILL OF PARTICULARS, RENDERING IT CONCLUSORY AND SPECULATIVE (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined defendant doctor’s (Buono’s) motion for summary judgment in this medical malpractice action should not have been granted: Buono’s expert’s affidavit did not address all the allegations in the bill of particulars, rendering it conclusory and speculative: “To prevail on a motion for summary judgment in a medical malpractice […]

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PLAINTIFF DID NOT DEMONSTRATE STANDING TO FORECLOSE; THE NOTE WAS NOT PROPERLY ENDORSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff in this foreclosure action did not establish standing to foreclose. Although the plaintiff proved it had possession of the note at the time the proceeding was brought, it did not demonstrate the note was properly endorsed: Although the plaintiff established, prima facie, that it had possession of […]

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DEFENDANTS DID NOT DEMONSTRATE THE SIDEWALK DEFECT WAS TRIVIAL AS A MATTER OF LAW IN THIS SLIP AND FALL CASE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants in this slip and fall case did not make out a prima facie case that the sidewalk defect was trivial as a matter of law. Therefore defendants’ summary judgment motion should not have been granted: … [T]he evidence submitted by the defendants, including, inter alia, a transcript […]

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ALTHOUGH PLAINTIFF’S EXPERT IN THIS ELEVATOR ACCIDENT CASE WAS NOT A PROFESSIONAL ENGINEER, HE HAD BEEN QUALIFIED AS AN EXPERT IN 120 CASES; THE JUDGE SHOULD NOT HAVE SUMMARILY DISQUALIFIED HIM (FIRST DEPT).

The First Department, reversing Supreme Court, determined the trial judge should not have disqualified plaintiff’s expert in this elevator accident case. Although the expert was not a professional engineer, he had been qualified as an expert in over 120 state and federal cases: Supreme Court erred in summarily disqualifying the opinion of Patrick A. Carrajat […]

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PLAINTIFF’S BRINGING MULTIPLE MERITLESS LAWSUITS AGAINST DEFENDANT AND HER ATTORNEYS OVER THE COURSE OF TEN YEARS WARRANTED SANCTIONS (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined plaintiff’s bringing several meritless lawsuits against defendant and her attorneys over the course of ten years warranted sanctions: Supreme Court improvidently exercised its discretion in denying defendant an award of sanctions despite noting that plaintiff’s “conduct was entirely frivolous,” “abusive,” and “fabricated.” The record firmly established that […]

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THE POLICE HAD TO “MANIPULATE” THE CHECKS TO DETERMINE THEY WERE FORGED; THEREFORE THE “PLAIN VIEW” EXCEPTION TO THE SEARCH WARRANT REQUIREMENT WAS NOT APPLICABLE; INDICTMENT DISMISSED (FOURTH DEPT). ​

The Fourth Department, suppressing evidence seized under the “plain view” exception to the warrant requirement, held the police had to “manipulate” the checks which were in plain view to determine they were forged. Because the nature of the checks was not apparent until they were “manipulated,” the “plain view” exception was not applicable: … [W]e […]

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