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Entries by Bruce Freeman

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CITY RETIREES THREATENED WITH ELIMINATION OF THEIR EXISTING HEALTH INSURANCE AND AUTOMATIC ENROLLMENT IN A MEDICARE ADVANTAGE PLAN ENTITLED TO RELIEF UNDER THEIR PROMISSORY ESTOPPEL CAUSE OF ACTION (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Gesmer, determined the doctrine of promissory estoppel justified a permanent injunction prohibiting the city from “eliminating … retirees’ existing health insurance, automatically enrolling them in a new Aetna Medicare Advantage Plan, enforcing a June 30, 2023 deadline for retirees to opt out of the new plan, […]

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HERE THERE WAS NO VALID REASON TO DENY DEFENDANT’S REQUEST TO REPRESENT HIMSELF; NEW TRIAL ORDERED (FIRST DEPT).

The First Department, reversing defendant’s conviction and ordering a new trial, determined defendant’s request to represent himself should have been granted: The court deprived defendant of his constitutional right to self-representation when it denied defendant’s motion to proceed pro se despite defendant’s knowing and voluntary waiver of his right to counsel. A defendant may invoke […]

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THE DA HANDLING THE APPEAL WAS A LAW CLERK TO THE JUDGE WHO PRESIDED OVER THE TRIAL; THE CONFLICT OF INTEREST REQUIRES THE APPOINTMENT OF A SPECIAL PROSECUTOR FOR THE APPEAL (THIRD DEPT).

The Third Department determined the District Attorney handling the appeal had a conflict of interest because she was a law clerk to the County Court judge who presided over the trial. A special prosecutor must be appointed to handle the appeal: During oral argument on this appeal, the Chief Assistant District Attorney (hereinafter ADA) who […]

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THE DETECTIVE’S TESTIMONY AT THE SUPPRESSION HEARING THAT THE VEHICLE WAS PULLED OVER BECAUSE OF “EXCESSIVELY TINTED WINDOWS” WAS NOT SUFFICIENT TO DEMONSTRATE PROBABLE CAUSE FOR THE STOP; SUPPRESSION SHOULD HAVE BEEN GRANTED (CT APP).

The Court of Appeals, reversing the Appellate Term, determined the police officer’s testimony at the suppression hearing the vehicle in which defendant was a passenger was stopped based on “excessively tinted window” was not sufficient to demonstrate probable cause for the vehicle stop. Therefore the drugs seized from the defendant should have been suppressed: Vehicle […]

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AN UNAMBIGUOUS CONTRACT PROVISION CONSTITUTES “DOCUMENTARY EVIDENCE” WHICH WILL SUPPORT A MOTION TO DISMISS PURSUANT TO CPLR 3211 (CT APP).

The Court of Appeals determined the provision of the contract which prohibited plaintiffs from bringing a breach of contract suit was unambiguous. An unambiguous contract constitutes “documentary evidence” which supports a motion to dismiss: On a motion to dismiss based on documentary evidence pursuant to CPLR 3211 (a) (1), dismissal is warranted only if the […]

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UNDER THE WORKERS’ COMPENSATION LAW PRESUMPTION IN SECTION 21, AN ASSAULT AT WORK IS EMPLOYMENT-RELATED AND COMPENSABLE ABSENT SUBSTANTIAL EVIDENCE THE ASSAULT WAS MOTIVATED BY PERSONAL ANIMOSITY (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Halligan, reversing the Appellate Division, determined the presumption that injury from an assault at work is employment-related and compensable applied in this hospital-shooting case. A former hospital employee entered the hospital wearing a white medical coat and shot six people in a non-public area, killing […]

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EVIDENCE FATHER POSSESSED COCAINE WITH INTENT TO SELL WAS NOT SUFFICIENT TO SUPPORT A NEGLECT FINDING; THERE WAS NO EVIDENCE FATHER USED DRUGS, EXPOSED THE CHILDREN TO DRUG-DEALING, OR STORED THE DRUGS WHERE THE CHILDREN COULD ACCESS THEM (SECOND DEPT).

The Second Department, reversing Family Court, determined the evidence that father possessed four ounces of cocaine did not support the neglect finding. There was no evidence the children were exposed to drug-dealing and the drugs were stored above where the children could access them: Family Court’s finding that the father neglected the children was not […]

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THE REPORT OF THE INCIDENT IN WHICH PETITIONER WAS INJURED DID NOT PROVIDE THE CITY DEFENDANTS WITH NOTICE OF A CONNECTION BETWEEN THE INJURIES AND ANY NEGLIGENCE ON THE PART OF THE DEFENDANTS; THEREFORE THE CITY DEFENDANTS DID NOT HAVE NOTICE OF THE CLAIM WITHIN 90 DAYS; IN ADDITION, IGNORANCE OF THE LAW IS NOT A VALID EXCUSE FOR FAILURE TO TIMELY FILE A NOTICE OF CLAIM; THE PETITION FOR LEAVE TO FILE AND SERVE LATE NOTICES OF CLAIM SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the petition for leave to file and serve late notices of claim in this construction accident case should not have been granted. Although there was a report about the incident, nothing in the report made a connection between petitioner’s injuries and negligence on the part of the city […]

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LABOR LAW 240(1) DOES NOT APPLY TO SLIPPING ON A STAIRCASE STEP, THE PERMANENT STAIRCASE IS NOT A SAFETY DEVICE; PLAINTIFF’S MOTION TO AMEND THE PLEADINGS TO ADD AN INDUSTRIAL CODE VIOLATION SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined (1) Labor Law 240(1) does not apply to slipping on a staircase step; and (2) plaintiff should have been allowed to amend the pleadings to assert a violation the Industrial Code in support of the Labor Law 241(6) cause of action: “‘[L]eave to amend the pleadings to […]

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A STIPULATIION OF SETTLEMENT DOES NOT IMPOSE A DUTY UPON A PERSON NOT A PARTY TO THE STIPULATION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined a person who was not a party to the stipulation of settlement in a divorce action (Kamaras) cannot be sued for an alleged violation of the stipulation: The plaintiff opposed Kamaras’s motion for summary judgment, contending, among other things, that Kamaras knew of the stipulation and its terms […]

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