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Entries by Bruce Freeman

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Expert’s Testimony About the Behavior of Sexual Abusers Is Proper/Exclusion of Testimony About Complainant’s Prior False Allegations of Sexual Abuse Was Reversible Error

In an opinion by Judge Pigott, the Court of Appeals affirmed the appellate division’s reversal of defendant’s sexual abuse convictions.  The Court of Appeals disagreed with the appellate division and determined expert testimony allowed by the trial court about how sexual abusers gain the trust of their victims was admissible. But the Court of Appeals […]

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Failure to Request Jury Charge for Lesser Included Offense Constituted Ineffective Assistance

In finding that defense counsel’s failure to request that the jury be charged with a lesser included offense constituted ineffective assistance, the Court of Appeals wrote: In his closing argument, [defense] counsel asked the jury to acquit defendant of attempted murder, but virtually invited a conviction for first degree assault. After saying: “on that particular […]

Open and Obvious Nature of Condition Required Dismissal of Complaint

In reversing the denial of defendant’s motion to dismiss the complaint, the First Department determined the open and obvious nature of the danger precluded the lawsuit: Dismissal of the complaint as against the City is warranted inthis action where the 14-year-old decedent drowned after she and friends scaled a fence, ignored signs prohibiting swimming, and […]

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Summary Judgment In Favor of Plaintiff-Company in Trespass Action Against Protesters Affirmed

The Fourth Department affirmed the grant of summary judgment to plaintiff-company in its trespass action against People United for Sustainable Housing (PUSH).  PUSH had staged “demonstrations concerning plaintiff’s use of funding it received to assist low-income customers with heating costs and increasing the energy efficiency of their homes.”  The Court determined the allegations of trespass […]

Scaffold, Safety Railing and Cross Braces Are Safety Devices

In affirming the denial of summary judgment to the plaintiff in a Labor Law 240 (1) action based upon plaintiff’s fall from a scaffold, the Fourth Department noted that a scaffold, safety railing and cross braces are safety devices: We agree with defendants … that the scaffold itself and the safety railing and cross braces […]

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Falling Off X-Ray Table Raised Question of Fact

The Fourth Department determined plaintiff had raised a question of fact re: medical malpractice where decedent fell off an x-ray table when the attendant left the room to develop the x-rays: Defendant failed to meet its “ ‘initial burden of establishing the absence of any departure from good and accepted medical practice or that the […]

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Housing for Actors and Theater Staff Deemed Tax-Exempt

The Fourth Department determined that the petitioner had demonstrated its property, which was used to house actors and staff for seasonal theaters and generated no income, met the criteria for tax-exempt property under Real Property Tax Law 420-a: According to [the] director, the housing of actors and staff together promotes countless hours of volunteer work […]

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Statute of Limitations to Reopen Tax Foreclosure Default Judgment Applies In Face of the Claim that Respondent Was Never Notified of the Proceeding

The Fourth Department determined the one month statute of limitations for a motion to reopen a default judgment of tax foreclosure applied even where the respondent asserts he or she was not notified of the proceeding: We agree with petitioner, however, that respondent’s motion was untimely. “A motion to reopen a default judgment of tax […]

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