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Entries by Bruce Freeman

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Copyright Infringement Action Re Pre-1972 Recordings Not Precluded by “Safe Harbor” Provision of Digital Millenium Copyright Act

In a full-fledged opinion by Justice Mazzarelli, the First Department determined that the “safe harbor” provisions in the Digital Millenium Copyright Act (DMCA) did not protect defendant, an Internet-based music streaming service, from a copyright infringement action based upon the uploading of recordings made prior to February 15, 1972.  In making this determination, the 2nd […]

Jury’s Consulting a Dictionary Justified Mistrial

In upholding the trial court’s grant of a mistrial because the jury consulted a dictionary, the First Department wrote: …[The court properly determined that the jury’s act of consulting an outside dictionary on a term critical to its decision constitutes misconduct warranting a mistrial, especially since the foreperson indicated that the jury was “confused” about […]

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Damages for Breach Must Be Awarded Even if Amount Uncertain

The First Department determined the trial court erred when it did not award damages for breach of contract because the amount of damages was uncertain: Where, as here, “it is certain that damages have been caused by a breach of contract, and the only uncertainty is as to their amount, there can rarely be good […]

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Undue Influence and Constructive Fraud Causes of Action Against Attorney Should Not Have Been Dismissed

The First Department reversed Surrogate’s Court’s dismissal of undue influence and constructive fraud causes of action against an attorney who was the beneficiary of a one million dollar trust account created by the decedent.  In finding questions of fact had been raised concerning both causes of action, in part concerning whether the attorney had misrepresented […]

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No Evidence Police Officer Acted in “Reckless Disregard” for Safety

The First Department determined the plaintiff did not raise a question of fact about whether a police officer drove his vehicle (which collided with plaintiff’s) in “reckless disregard for the safety of others,” finding plaintiff’s allegations “conclusory and speculative.:” Defendants’ proof established that defendant Steve Tompos, a police officer, did not act in “reckless disregard […]

Sentences for Underlying Felony and Bail Jumping Must Be Consecutive Absent Mitigating Factors that Bear Directly on the Manner the Crime Was Committed

In finding the sentencing court used the wrong “mitigating” factors to determine whether the sentence for bail jumping could run concurrently with the sentence for the underlying felony, the Third Department wrote: Penal Law § 70.25 (2-c) restricts a court’s sentencing discretion when a person who is convicted of bail jumping in the second  degree  […]

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Inmate Should Not Have Been Required to Document His Native American Ancestry In Order to Practice His Religion

In annulling a determination by the Central Office Review Committee (CORC) that the petitioner (an inmate) must document his Native American ancestry before he will be allowed to practice his religion, the Third Department wrote: It has been recognized that correction officials may impose restrictions on the religious practices of inmates provided that such restrictions […]

Claimant, Who Had Been Diagnosed With Job-Related Stress, Did Not Have Good Cause to Resign

After a doctor diagnosed claimant with job-related stress and authorized a month’s leave from work, claimant resigned from his job.  The Third Department affirmed the Unemployment Insurance Appeal Board’s finding claimant was not eligible for unemployment insurance on the ground he left his employment without good cause: It is well settled that general dissatisfaction with […]

Injured Party, as Well as the Insured Defendant, Has a Duty to Inform Insured’s Carrier of Incident; Failure of Timely Notice by Both the Insured and the Injured Party Allowed Carrier to Disclaim

In this case the insurer [Tower] disclaimed coverage because it was not given notice of the claim.  The Second Department determined that both the insured [Xu] and the injured party [Gomez] had a duty to inform the carrier of the incident: The question before us is whether Tower may be required to afford coverage to […]

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