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Entries by Bruce Freeman

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FAILURE TO PROPERLY ASSESS A PATIENT’S RISK OF FALLING AND NEED FOR SUPERVISION SOUNDS IN MEDICAL MALPRACTICE, NOT NEGLIGENCE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the action sounded in medical malpractice, not negligence. Plaintiff’s decedent, who was blind, fell from an examining table when the nurse stepped away to throw away gauze in a nearby trash can: Allegations that a health care provider improperly assessed a patient’s risk of falling and need for […]

THE CUSTODY/GUARDIANSHIP HEARING TOOK SEVEN YEARS AND THE CHILDREN RESIDED WITH GRANDMOTHER AND UNCLE DURING THAT TIME; THE EXTENDED DISRUPTION OF CUSTODY CAUSED BY THE PROTRACTED COURT PROCEEDINGS DID NOT CONSTITUTE “EXTRAORDINARY CIRCUMSTANCES” WARRANTING AN AWARD OF CUSTODY TO GRANDMOTHER AND UNCLE (SECOND DEPT). ​

The Second Department, reversing Family Court, noted that the six or seven years during which the children resided with grandmother and uncle did not constitute “extraordinary circumstances” warranting granting grandmother and uncle, as opposed to mother, custody. Mother was seeking custody the entire time. The hearing started in 2014 and didn’t conclude until 2021: … […]

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THE CUSTODY-RELATED PRINCIPALS UNDERLYING MICHAEL B, 80 NY2D 299, APPLY TO THIS SURROGATE’S COURT GUARDIANSHIP PROCEEDING WHERE BOTH PARENTS SEEK TO BE APPOINTED GUARDIAN OF THEIR DEVELOPMENTALLY DISABLED SON AS HE TURNS 18; NEW EVIDENCE RENDERED THE RECORD INSUFFICIENT FOR A GUARDIANSHIP DETERMINATION; A NEW HEARING WAS ORDERED (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Miller, in this Surrogate’s Court guardianship proceeding, determined the principals underlying Matter of Michael B, 80 NY2d 299, a custody case, should apply to this action to determine which parent should be appointed guardian of their developmentally disabled son, Joseph J D II, as he turned […]

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THE LAWSUIT SOUGHT RETURN OF A DOWN PAYMENT UNDER A REAL ESTATE CONTRACT; BECAUSE THE LAWSUIT DID NOT AFFECT TITLE, POSSESSION, USE OR ENJOYMENT OF THE PROPERTY A NOTICE OF PENDENCY IS NOT APPROPRIATE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the notice of pendency should have been cancelled because the lawsuit, which sought the return of a down payment under a real estate contract, did not affect title, possession, use or enjoyment of the real property: Pursuant to CPLR 6501, “[a] notice of pendency may be filed only […]

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THERE IS A QUESTION OF FACT WHETHER THE SCHOOL’S DUTY TO SUPERVISE STUDENTS EXTENDS TO AN AREA OUTSIDE THE SCHOOL WHERE PARENTS PICK UP AND DROP OFF THE STUDENTS; INFANT PLAINTIFF TRIPPED AND FELL ON A ROAD DEFECT NEAR THE CURB (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the negligent supervision cause of action against defendant school should not have been dismissed. Infant plaintiff tripped and fell on a road defect that abutted a curb where students were picked up and dropped off by parents: “Schools are under a duty to adequately supervise the students in […]

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THE JUDGE’S PROVIDING A RACE-NEUTRAL REASON FOR THE PEOPLE’S PEREMPTORY CHALLENGE TO A JUROR, WHILE THE PROSECUTOR REMAINED SILENT, WAS REVERSIBLE ERROR (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Rivera, reversing the Appellate Division, determined the judge’s providing a race-neutral reason for the People’s peremptory challenge of a juror, while the prosecutor remained silent, was reversible error: Here, it is undisputed that defendant established a prima facie case of discrimination with respect to the […]

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THE SEARCH OF A SMALL EARBUD CASE IN DEFENDANT-PAROLEE’S POCKET WAS NOT REASONABLY RELATED TO THE CLAIMED PURPOSE OF THE PAROLE OFFICERS’ PRESENCE IN DEFENDANT’S RESIDENCE, I.E., A SEARCH FOR A PAROLE ABSONDER; THE HEROIN FOUND IN THE EARBUD CASE SHOULD HAVE BEEN SUPPRESSED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Troutman, reversing the Appellate Division, determined the search of defendant-parolee’s person by a parole officer was not rationally and reasonably related to the parole officers’ duty. The parole officers claimed they entered defendant’s residence to look for a parole absconder. The search of a small […]

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THE SEARCH OF DEFENDANT-PAROLEE’S RESIDENCE WAS “RATIONALLY AND REASONABLY RELATED TO THE PERFORMANCE OF THE PAROLE OFFICER’S DUTY” AND THEREFORE DENIAL OF THE MOTION TO SUPPRESS THE WEAPON FOUND IN THE RESIDENCE WAS PROPER (CT APP).

The Court of Appeals, affirming the Appellate Division, determined the search of defendant-parolee’s residence after a tip from defendant’s mother about defendant’s possession of a firearm was “rationally and reasonably related to the performance of the parole officer’s duty:” As a condition of his parole, defendant agreed not to “own, possess, or purchase” any firearm […]

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THE POLICE MAY STOP A VEHICLE IN THE EXERCISE OF THE “COMMUNITY CARETAKING” FUNCTION IF THERE IS CAUSE TO BELIEVE SOMEONE IN THE VEHICLE NEEDS ASSISTANCE; THE QUICK OPENING AND CLOSING OF A PASSENGER DOOR WAS NOT ENOUGH (CT APP).

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Troutman, over a two-judge concurrence, recognized that a vehicle may be stopped by the police exercising the “community caretaking” function if the police have cause to believe someone in the vehicle needs assistance. Here defendant’s car was stopped after the passenger […]

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THE “RELIGIOUS EMPLOYER” EXEMPTION FROM MANDATED INSURANCE COVERAGE FOR MEDICALLY NECESSARY ABORTIONS DOES NOT VIOLATE THE FREE EXERCISE CLAUSE (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Wilson, determined the US Supreme Court ruling in Fulton v Philadelphia, 593 US 522 (2021) did not render the “religious employer” exemption to the mandated insurance coverage for medically necessary abortions unconstitutional. The opinion is too detailed and comprehensive to fairly summarize here: Plaintiffs, the […]

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