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Entries by Bruce Freeman

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District Attorney’s Prosecution of a Case in Which the Complainant Was a Sitting Judge Created the Appearance of Impropriety—A Special Prosecutor Should Have Handled the Case

A sitting City Court judge was the complainant in a harassment case.  A judge and a defense attorney from another county were appointed to handle the case.  The defense attorney made a motion to have a special prosecutor appointed as well because of the relationship between the District Attorney’s Office and the complainant.  That request […]

Relation-Back” and “Savings Clause” Statutes Explained

The First Department discussed the difference between the relation-back doctrine of CPLR 203(f) and the savings clause of CPLR 205(a): In a prior appeal in this action, we held that plaintiffs could not utilize the relation-back provisions in CPLR 203(f) to cure their defective initial complaint, based on their failure to comply with the subject […]

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Five-Day Time-Limit On Motion to Dismiss Based Upon Erroneous Information Provided by Prosecutor to Defendant Which Caused Defendant to Refrain from Testifying Before the Grand Jury

The Third Department, in a decision by Justice Peters, reversed County Court’s dismissal of an indictment based on the prosecutor’s (erroneously) telling the defendant he would be subject to cross-examination about a pending charge if he chose to testify before the grand jury.  There is a five-day time limitation for a motion to dismiss on […]

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Failure to Apply the Merger Doctrine In a Kidnapping Case is not a “Mode of Proceedings” Error—Failure to Object at Trial Precludes Review

n a full-fledged opinion by Judge Graffeo, the Court of Appeals determined that the failure to apply the merger doctrine, where kidnapping is deemed to merge with another substantive crime, is not a “mode of proceedings” error, and therefore is not reviewable in the Court of Appeals absent an objection at trial.  The merger doctrine […]

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1983 Action Against Department of Corrections Is Not Brought in the Court of Claims

The Third Department, in a decision by Justice Garry, reversed Supreme Court’s dismissal of a 1983 action against employees of the Department of Corrections and Community Supervision challenging a urinalysis report: Supreme Court found that it lacked jurisdiction based upon Correction Law § 24, which requires that actions alleging negligence by state correction officers be […]

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“Professional” Standard of Care Can Be Required Based Solely on Nature of Services Provided

The First Department noted that a “professional” standard of care could be required of a party solely by virtue of the nature of services rendered: The court properly found that Impact had a professional duty independent of the parties’ agreements. Although Impact, an environmental consultant, was not subject to licensing requirements, public policy requires that […]

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