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Entries by Bruce Freeman

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THE STATUTE REQUIRING DEFENDANT TO REGISTER AS A SEXUALLY VIOLENT OFFENDER BASED ON AN OUT-OF-STATE CONVICTION FOR A NONVIOLENT OFFENSE IS UNCONSTITUTIONAL AS APPLIED TO DEFENDANT (FOURTH DEPT).

The Fourth Department, reversing County Court, determined the statute which required designating defendant a sexually violent offender based upon an out-of-state conviction for a nonviolent offense was unconstitutional as applied to her: In this proceeding under the Sex Offender Registration Act (Correction Law § 168 et seq.), defendant appeals from an order insofar as it […]

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DEFENDANT WAS ERRONEOUSLY DENIED HIS RIGHT TO BE PRESENT AT THE SANDOVAL HEARING, NEW TRIAL ORDERED (FOURTH DEPT).

The Fourth Department, reversing defendant’s convictions and ordering a new trial, determined defendant was erroneously deprived of his right to be present for the Sandoval hearing: Where a defendant is denied the right to be present during a Sandoval hearing, reversal of defendant’s conviction is required (… see … CPL 260.20), unless “defendant’s presence at […]

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FAMILY COURT DID NOT GIVE RESPONDENT ANY TIME TO PREPARE FOR THE CHILD SUPPORT HEARING AND INDICATED SHE HAD PREDETERMINED THE OUTCOME; ORDER REVERSED (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined the judge should have given respondent mother time to prepare for the child-support hearing. In addition, the Fourth Department noted the judge had improperly “predetermined” the case: Family Court erred when it determined that his alleged violation of the child support order was willful and sentenced him to […]

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THE PEOPLE DID NOT DEMONSTRATE DUE DILIGENCE IN ASCERTAINING THE EXISTENCE OF A FORENSIC REPORT AND DISCIPLINARY RECORDS; TURNING THEM OVER UPON DISCOVERING THEM AND SUMBITTING A SUPPLEMENTAL CERTIFICATE OF COMPLIANCE (COC) DID NOT CURE THE OMISSION (FOURTH DEPT).

The Fourth Department determined the People did not meet their burden of demonstrating compliance with their discovery obligations before filing the Certificate of Compliance (COC): … [W]e conclude that the People failed to meet their burden of establishing that they exercised due diligence and made reasonable inquiries prior to filing the July 2022 COC … […]

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DEFENDANT FARM’S EMPLOYEE WAS DRIVING FARM EQUIPMENT AT NIGHT WITHOUT LIGHTS WHEN PLAINTIFF COLLIDED WITH IT; PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT UNDER A NEGLIGENCE-PER-SE THEORY AND UNDER RESPONDEAT SUPERIOR (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined plaintiff was entitled to summary judgment in this traffic accident case. Plaintiff collided with a manure spreader with no lights which was being towed by a tractor at night (a violation of the Vehicle and Traffic Law). In addition, the employer of the driver was deemed liable […]

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PLAINTIFF ASSUMED THE RISK OF AN ACCIDENT INVOLVING HER GOLF CART AND A MOTOR VEHICLE IN THE COUNTY GOLF COURSE PARKING LOT; TWO JUSTICE DISSENT (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, over a two-justice dissent, determined the assumption of the risk doctrine applied to the operation of a golf cart in the parking lot of a golf course. Defendant county, the owner of the golf course, was therefore not liable for an accident involving a motor vehicle in the parking […]

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WHETHER THE CHILD VICTIMS ACT (CVA) REVIVES OTHERWISE TIME-BARRED WORKERS’ COMPENSATION CLAIMS AND WHETHER PLAINTIFF’S DAMAGES ARE LIMITED TO WORKERS’ COMPENSATION BENEFITS ARE QUESTIONS OF LAW FOR THE COURT, NOT THE WORKERS’ COMPENSATION BOARD (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, held the court, not the Workers’ Compensation Board, must determine whether damages in this Child Victims Act (CVA) sexual-abuse action against the alleged perpetrator’s employer are limited to Workers’ Compensation benefits and whether claims for time-barred Workers’ Compensation benefits are revived by the Child Victims Act (CVA):​ ” […]

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WHERE THERE ARE MULTIPLE EXCESS COVERAGE POLICIES COVERING THE SAME RISK, THE EXCESS COVERAGE CLAUSES CANCEL EACH OTHER OUT (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, explained how multiple “excess coverage” insurance policies should be applied: “[W]here there are multiple policies covering the same risk, and each generally purports to be excess to the other, the excess coverage clauses are held to cancel out each other and each insurer contributes in proportion to its […]

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DEFENDANT WAS NOT IN “CLOSE PROXIMITY” TO THE DRUGS WITHIN THE MEANING OF THE “ROOM” OR “DRUG FACTORY” PRESUMPTION; NEW TRIAL ORDERED (FOURTH DEPT).

The Fourth Department, reversing defendant’s possession-of-drugs convictions and ordering a new trial, determined the “room” or “drug factory” presumption was not applicable: … [S]ection 220.25 (2) provides that “[t]he presence of a narcotic drug . . . in open view in a room . . . under circumstances evincing an intent to unlawfully mix, compound, […]

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PLAINTIFF, IN THIS CHILD VICTIMS ACT SEXUAL ABUSE ACTION, PROPERLY ASSERTED A CAUSE OF ACTION FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS AS AN ALTERNATIVE TO THE NEGLIGENCE CLAIMS, CRITERIA EXPLAINED IN DEPTH (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, in a full-fledged opinion by Justice Higgitt, determined the intentional infliction of emotional distress (IIED) cause of action should not have been dismissed in this Child Victims Act sexual abuse case. Supreme Court held the IIED cause of action duplicated negligence causes of action. It was alleged that […]

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