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Entries by Bruce Freeman

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HEARSAY STATEMENTS IN AN UNCERTIFIED, UNAUTHENTICATED REPORT FOR WHICH NO FOUNDATION WAS PROVIDED DID NOT CREATE AN ISSUE OF FACT (FIRST DEPT).

The Frist Department, reversing Supreme Court in this hit and run traffic accident case, noted that hearsay statements in the Prehospital Care Report, which was not certified or authenticated, did not create an issue of fact: The court improperly denied petitioner’s motion based on hearsay statements in the Prehospital Care Report, as the report was […]

THE FLOOR OF THE ELEVATOR WHERE PLAINTIFF’S ACCIDENT OCCURRED IS NOT A “PASSAGEWAY” WITHIN THE MEANING OF THE INDUSTRIAL CODE (FIRST DEPT). ​

The First Department, reversing (modifying) Supreme Court, determined the floor of an elevator is not a “passageway” within the meaning of the Industrial Code. Therefore the Labor Law 241(6) cause of action based upon an Industrial Code provision requiring that “passageways” be kept free from dirt, debris and other obstructions was inapplicable, However, the code […]

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THE GRAND JURY EVIDENCE SUPPORTED THE INDICTMENT COUNTS CHARGING DEFENDANT STATE TROOPER WITH “DEPRAVED INDIFFERENCE” CRIMES STEMMING FROM HIGH-SPEED CHASES OF PURPORTED SPEEDERS WHICH RESULTED IN CRASHES AND THE DEATH OF A CHILD; THERE WAS A COMPREHENSIVE DISSENT WHICH ARGUED THE CRITERIA FOR “DEPRAVED INDIFFERENCE” WERE NOT MET (THIRD DEPT).

The Third Department, over a dissent, reversed County Court and reinstated the depraved indifference murder and first-degree reckless endangerment (which also requires “depraved indifference”) counts. County Court, after reviewing the grand jury evidence, had dismissed the depraved indifference murder count and reduced the first-degree reckless endangerment counts to second degree reckless endangerment. The charges against […]

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THE FOIL REQUEST FOR THE EMAIL ADDRESSES OF ALL NEW YORK CITY EMPLOYEES PROPERLY DENIED UNDER THE CYBERSECURITY EXEMPTION (FIRST DEPT).

The First Department, affirming Supreme Court’s denial of petitioner’s FOIL request for the email addresses of all New York City employees, determined the information was covered by the cybersecurity exemption from disclosure under FOIL. The petitioner is a foundation which seeks to inform those city employees who are public-employee-union members of their right to opt […]

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EVEN WHERE, AS HERE, THE REVIEWING COURT WOULD HAVE DECIDED THE MATTER DIFFERENTLY, THE COURT MUST AFFIRM AN ADMINISTRATIVE AGENCY’S RULING WHICH HAS A RATIONAL BASIS; THE TWO-JUSTICE DISSENT ARGUED THE PROOF PETITIONER RESIDED WITH HIS BROTHER IN THE MITCHELL-LAMA APARTMENT WAS SUFFICIENT AND PETITIONER WAS ENTITLED TO SUCCESSION RIGHTS (FIRST DEPT).

The First Department, reversing Supreme Court, over a two-justice dissent, determined Supreme Court should not have annulled the NYC Department of Housing Preservation and Development’s (HPD) denial of petitioner’s application seeking succession rights to his brother’s Mitchell-Lama apartment. Even where, as here, the court reviewing an administrative agency’s ruling would have decided the matter differently, […]

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THE OBSERVATIONS BY THE POLICE OF THE INTERACTIONS BETWEEN DEFENDANT AND A WOMAN WHO WAS A “KNOWN DRUG USER” PROVIDED PROBABLE CAUSE TO ARREST FOR A DRUG SALE; STRONG, EXTENSIVE DISSENT (FIRST DEPT). ​

The First Department, affirming the denial of defendant’s suppression motion, over an extensive dissent, determined the police had probable cause to arrest defendant for a drug sale based upon their observations of the interaction between defendant and a woman, “a known drug user,” outside a motel: In determining whether probable cause exists in a drug […]

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DEFENDANT’S MENTAL ILLNESS WARRANTED REDUCING DEFENDANT’S SENTENCE FOR ROBBERY TO THE MINIMUM, STRONG DISSENT (FIRST DEPT).

The First Department, reducing defendant’s sentence to the minimum for robbery, in a full-fledged opinion by Justice Gesmer, over a strong dissent, determined defendant’s (Mr. Sparks’) mental illness warranted a sentence reduction: … [C]ontinued incarceration of Mr. Sparks serves none of the objectives of criminal punishment. In order to best protect the public, Mr. Sparks […]

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FAMILY COURT ACT SECTION 1028 REQUIRES THAT THE COURT EXPEDITE A HEARING ON MOTHER’S PETITION TO HAVE HER CHILDREN RETURNED TO HER; HERE THE HEARING WAS STARTED WITHIN THREE DAYS OF THE APPLICATION AS REQUIRED BUT WAS THEREAFTER ADJOURNED SEVERAL TIMES OVER A PERIOD OF MONTHS, A VIOLATION OF THE STATUTE (FIRST DEPT).

The First Department, ordering Family Court to expedite a Family Court Act Section 1028 hearing on mother’s application to have her children returned to her, determined the adjournments of the continuation of the hearing over a period of months violated section 1028: Family Court Act § 1028 “provides for an expedited hearing to determine whether […]

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HERE THE CITY DEMONSTRATED IT DID NOT HAVE WRITTEN NOTICE OF THE MOUND OF SNOW AND ICE WHERE PLAINTIFF ALLEGEDLY SLIPPED AND FELL, WHICH ORDINARILY WOULD SUPPORT SUMMARY JUDGMENT IN FAVOR OF THE CITY; HOWEVER PLAINTIFF RAISED A QUESTION OF FACT WHETHER THE CITY CREATED THE DANGEROUS CONDITION BY PLOWING, AN EXCEPTION TO THE WRITTEN NOTICE REQUIREMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff in this ice and snow slip and fall case raised a question of fact whether the city created the dangerous condition by creating a mound of ice and snow when plowing. The defendant city’s “written notice” requirement for liability in slip and fall cases did not apply […]

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PLAINTIFF’S MOTION FOR LEAVE TO SERVE A SUPPLEMENTAL BILL OF PARTICULARS SHOULD HAVE BEEN GRANTED BECAUSE IT MERELY AMPLIFIED THE ALLEGATIONS IN THE COMPLAINT AND BILL OF PARTICULARS; HOWEVER, THE NEW CAUSES OF ACTION IN THE AMENDED BILLS OF PARTICULARS WERE PROPERLY STRUCK (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined plaintiff in this medical malpractice action should have been allowed to serve a supplemental bill of particulars which amplified the allegations in the complaint and noted that plaintiff’s mislabeling an amended bill of particulars as a supplemental bill of particulars could be overlooked: A party is entitled […]

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