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Entries by Bruce Freeman

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FATHER’S ABUSE AND NEGLECT OF ONE CHILD, HANNAH D, SUPPORTED THE FINDING FATHER DERIVATIVELY ABUSED TWO OTHER CHILDREN, EVEN THOUGH ONE WAS AN INFANT AND THE OTHER HAD NOT BEEN BORN AT THE TIME OF THE ABUSE OF HANNAH D (SECOND DEPT).

The Second Department, reversing Family Court, determined the abuse of one daughter, Hannah D, supported a finding father derivatively abused two other children, even though one was an infant and the other had not been born at the time of the abuse of Hannah D: … [A] preponderance of the evidence supported a finding of […]

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PLAINTIFF RAISED A QUESTION OF FACT WHETHER THE STROKE DIAGNOSIS WAS TIMELY AND WHETHER THE FAILURE TO MAKE A TIMELY DIAGNOSIS DECREASED THE CHANCES OF A BETTER OUTCOME (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s expert raised a question of fact in this medical malpractice action alleging the failure to timely diagnose a stroke: Where a plaintiff in a medical malpractice action alleges a failure to timely diagnose a condition, the plaintiff must show that the departures from the standard of care […]

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IN THIS CHILD VICTIM’S ACT CASE ALLEGING SEXUAL ABUSE AFTER PLACEMENT IN FOSTER CARE BY THE DEFENDANT COUNTY, THE SECOND DEPARTMENT, DISAGREEING WITH THE FIRST AND FOURTH DEPARTMENTS, DETERMINED THE COUNTY OWED PLAINTIFF A SPECIAL DUTY UPON ASSUMING CUSTODY OVER HER FOR FOSTER-CARE PLACEMENT (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Ventura, affirming Supreme Court’s denial of the county’s motion for summary judgment, expressly disagreeing with contrary rulings in the First and Fourth Departments, determined a municipal agency which assumes custody over a child for the purpose of placing the child in foster care owes a special […]

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THE ATTORNEY’S “CERTIFICATE OF TRANSLATION” DID NOT INCLUDE SUFFICIENT DETAIL ABOUT THE ATTORNEY’S KNOWLEDGE OF THE SPANISH LANGUAGE; THEREFORE THE TRANSLATION OF PLAINTIFF’S AFFIDAVIT WAS NOT ADMISSIBLE AND SUMMARY JUDGMENT WAS NOT SUPPORTED (SECOND DEPT).

The Second Department, reversing summary judgment in favor of plaintiff in this traffic accident case, determined the attorney’s “certificate of translation” was not sufficient to render plaintiff’s affidavit, written in Spanish, admissible: … [P]laintiff submitted an affidavit in which he averred, among other things, that the “affidavit was translated to me from English to Spanish […]

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THE PROOF DID NOT SUPPORT A FINDING THAT THE ASSAULT SECOND AND CRIMINAL POSSESSION OF A WEAPON THIRD CONVICTIONS WERE BASED ON SEPARATE AND DISTINCT ACTS, THEREFORE CONSECUTIVE SENTENCES WERE NOT WARRANTED; DEFENDANT SHOULD NOT HAVE BEEN ADJUDICATED A SECOND FELONY OFFENDER BASED ON A NEW JERSEY CONVICTION WHICH WAS NOT A FELONY IN NEW YORK (SECOND DEPT). ​

The Second Department, remitting the matter for resentencing, determined consecutive sentences were not supported by the proof and defendant should not have been adjudicated a second felony offender based upon a New Jersey conviction of burglary in the third degree which is not a felony under New York law: The defendant contends that the Supreme […]

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MOTHER’S PETITION FOR A MODIFICATION OF CUSTODY SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Family Court, determined mother had demonstrated a change in circumstances warranting a modification of custody: … [T]he record reveals that, in support of her petition, the mother established more than conflict between the parties and difficulties in co-parenting. The evidence at the hearing showed that the parties’ relationship had deteriorated to […]

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A 400-POUND DUCT LIFT TOPPLED OFF AN UNSTEADY RAMP AND STRUCK PLAINTIFF; ALTHOUGH THE LIFT DROPPED ONLY 10 TO 12 INCHES, PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, determined plaintiff’s motion for summary judgment on the Labor Law 240(1) cause of action should have been granted. Plaintiff was struck by a 400 pound duct lift which toppled off an unsteady ramp. The lift fell only 10 to 12 inches, but met the criteria for a gravity-related […]

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MOTHER MADE OUT A PRIMA FACIE CASE FOR RELOCATING WITH THE CHILD IN THIS CUSTODY PROCEEDING; CREDIBILITY ISSUES PLAY NO ROLE AT THE MOTION-TO-DISMISS STAGE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined mother had made out a prima facie case for relocating to a different county with the child. The petition for a modification of custody should not have been dismissed: “In deciding a motion to dismiss a petition for failure to establish a prima facie case, the court must […]

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DEFENDANTS DEMONSTRATED THEY DID NOT HAVE ACTUAL OR CONSTRUCTIVE NOTICE OF THE WATER ON THE FLOOR WHERE PLAINTIFF ALLEGEDLY SLIPPED AND FELL; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined defendants in this slip and fall case were entitled to summary judgment, in part because they demonstrated they did not have actual or constructive notice of the water on the floor in the laundry room where plaintiff allegedly fell: … [T]he defendants established, prima facie, that they maintained […]

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THE RECORD ON APPEAL DID NOT SUPPORT FAMILY COURT’S RULING MOTHER HAD FORFEITED HER RIGHT TO COUNSEL IN THIS TERMINATION-OF-PARENTAL-RIGHTS PROCEEDING (SECOND DEPT).

The Second Department, reversing Family Court, determined the record on appeal did not support Family Court’s ruling mother had forfeited her right to counsel in this termination-of-parental-rights proceeding. ​… Family Court granted a second application by the mother’s assigned counsel to be relieved and determined that the mother had forfeited her right to be assigned […]

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