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Entries by Bruce Freeman

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Damages for Breach of Purchase Contract Are Measured by the Difference Between the Purchase Price and the Market Value at Time of Breach

In a lengthy opinion by Judge Read, the Court of Appeals determined that, where a purchase contract for real property has been breached, the measure of damages is the difference between the sale price and the market value of the property at the time of the breach.  The price at which the property subsequently sells […]

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Wife’s Derivative Claim Added to Complaint After Expiration of Statute of Limitations

The First Department held that a wife’s derivative claim in a medical malpractice action brought by her husband could be added to the complaint after the statute of limitations had expired (disagreeing with the 2nd and 3rd Departments): The motion court properly exercised its discretion in granting leave to amend. The original complaint placed Kings […]

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False Arrest, Malicious Prosecution, and 1983 Actions Allowed to Proceed

In reversing the trial court’s grant of summary judgment to the defendants in an action for false arrest, malicious prosecution and violation of 42 USC 1983, the Second Department wrote: …[I]n opposition to the Allstate defendants’ prima facie showing, the plaintiff raised triable issues of fact as to whether the Allstate defendants affirmatively induced law […]

Liability of Prime Contractors and Subcontractors Explained

In affirming the motion court’s grant of summary judgment to the defendant prime contractor and defendant subcontractors, the Second Department clearly described the relevant proof requirements for Labor Law 200, 240 (1), 241 (6) and common-law negligence causes of action.  Giovanniello v E W Howell, Co., LLC, 2013 NY Slip Op 01805, 2011-11465, Ind No 26676/09, […]

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Weight of Evidence Review Applies to More than Just Credibility—It Also Applies to Failure to Prove Elements Beyond a Reasonable Doubt

The Second Department determined the conviction for “criminal sexual act in the first degree” was against the weight of the evidence because the relevant testimony, although credible, did not prove all the elements of the crime beyond a reasonable doubt: The defendant correctly contends that his conviction of criminal sexual act in the first degree […]

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Conviction of Endangering Welfare of a Child Against Weight of Evidence; Defendant Did Not Open Door to Questioning About Prior Bad Acts Ruled Off Limits in Sandoval Hearing; Rape Shield Law Exception Applied

In reversing the conviction, the Second Department determined that the acquittal on a rape count rendered the conviction on a related “endangering the welfare of a child” count “against the weight of the evidence.”  The Second Department also ruled that questions posed by defense counsel did not “open the door” to questioning by the prosecutor […]

Challenges for Cause Should Have Been Granted 

In reversing the conviction, the Second Department determined two juror challenges for cause should have been granted because the jurors indicated they would tend to give added weight to the testimony of police officers and the court did not seek unequivocal assurances the jurors could set aside their bias. Defendant’s co-defendant’s judgment of conviction was […]

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