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Entries by Bruce Freeman

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THE NONPARTY OPERATOR OF AN ANONYMOUS WEBSITE WHICH POSTED ALLEGEDLY DEFAMATORY STATEMENTS ABOUT RESPONDENT BUSINESS WAS ENTITLED TO MAINTAIN HER ANONYMITY PURSUANT TO THE FIRST AMENDMENT; HER MOTION TO QUASH SUBPOENAS AIMED AT REVEALING HER IDENTITY SHOULD HAVE BEEN GRANTED (FISRT DEPT).

The First Department, reversing Supreme Court, determined nonparty BehindMLM, the anonymous operator of a website which posts articles, was entitled to her anonymity. The respondent GSB had obtained a default judgment in Germany in a defamation action against Google (which hosts the website) and GoDaddy where the site’s domain name is registered. The defamation action […]

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A SCHEDULE LOSS OF USE (SLU) EVALUATION BASED UPON THE EXPIRED 2012 GUIDELINES SHOULD NOT HAVE BEEN CONSIDERED BY THE WORKER’S COMPENSATION BOARD; A SECOND SLU EVALUATION BASED UPON THE CURRENT 2018 GUIDELINES HAD BEEN SUBMITTED BUT WAS NOT RELIED UPON BY THE BOARD (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined the fact that the claimant’s treating physician’s (Harley’s) initial schedule loss of use (SLU) evaluation was based on the expired 2012 guidelines, not the most recent 2018 guidelines, and therefore should not have been considered. The treating physician had subsequently submitted another SLU evaluation based on […]

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A LOOSE DOOR HANDLE CAUSED THE GLASS DOOR TO SHATTER; DEFENDANTS PRESENTED INSUFFICIENT EVIDENCE OF WHEN THE DOOR HANDLE WAS LAST INSPECTED AND THEREFORE DID NOT DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF THE CONDITION (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined the defendants did not demonstrate the glass door which shattered had been inspected close in time to the incident. Therefore a question of fact remained whether defendants had constructive knowledge of the loose handle which caused the door to shatter when plaintiff attempted to open it: Although 730-Gen’s […]

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SECOND DEPARTMENT TO JUDGES: DON’T DISMISS A COMPLAINT SUA SPONTE (SECOND DEPT).

The Second Department, reversing Supreme Court, in a full-fledged opinion by Justice Dillon, made the following point explicit: a sua sponte dismissal of a complaint is almost never appropriate and almost always will be reversed: Sua sponte dismissals are not appealable as of right (see CPLR 5701[a][2] …). The reason is that such dismissals are not, […]

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ALTHOUGH PLAINTIFF DID NOT KNOW WHICH STEP SHE SLIPPED AND FELL FROM, THERE WAS EVIDENCE ALL THE STEPS WERE UNLEVEL AND SLOPING; DEFENDANT DID NOT DEMONSTRATE THE CONDITION OF THE STAIRWAY WAS LATENT AND NOT DISCOVERABLE; DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined defendant did not demonstrate plaintiff could not identify the cause of her stairway fall and defendant did not demonstrate the nonlevel and sloping condition of the steps was latent and could not have been discovered: … [T]he plaintiff testified that her fall was caused by the fact that […]

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THE PLEA ALLOCUTION NEGATED ELEMENTS OF THE CRIME; APPEAL HEARD DESPITE FAILURE TO PRESERVE THE ISSUE BY MOVING TO WITHDRAW THE PLEA; GUILTY PLEA VACATED (SECOND DEPT). ​

The Second Department, vacating defendant’s guilty plea, determined the defendant’s factual recitation preceding the plea negated elements of the offense. The court heard the appeal despite a failure to preserve the error by moving to withdraw the plea: Although the defendant failed to preserve for appellate review his contention concerning the factual recitation with respect […]

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THE NEGOTIATED PLEA REQUIRED NO POST-PLEA ARRESTS; DEFENDANT WAS ARRESTED AFTER THE PLEA BUT THE PROCEEDINGS WERE DISMISSED ON SPEEDY TRIAL GROUNDS AND THE RECORDS SEALED; THE POST-PLEA ARRESTS WERE THEREFORE A NULLITY AND SHOULD NOT HAVE BEEN CONSIDERED BY THE SENTENCING JUDGE (SECOND DEPT). ​

The Second Department determined defendant’s sentence was based upon post-plea arrests which resulted in dismissal on speedy trial grounds and for which the records had been sealed. Criminal records sealed pursuant to Criminal Procedure Law (CPL) 160.50(1) have thereby been rendered a nullity. Therefore the sealed proceedings can not be the basis for a sentence: […]

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THE STATUTORY PROCEDURE FOR SENTENCING A DEFENDANT AS A PERSISTENT FELONY OFFENDER WAS NOT FOLLOWED BY THE JUDGE; SENTENCE VACATED (SECOND DEPT).

The Second Department, vacating defendant’s sentence, determined the judge did not follow the procedure for sentencing a defendant as a persistent felony offender: The Supreme Court erred in failing to comply with the procedural requirements of Penal Law § 70.10(2) when resentencing the defendant as a persistent felony offender. The procedure for determining whether a […]

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PHYSICAL INCAPACITY CAN BE A REASONABLE EXCUSE FOR FAILING TO TIMELY FILE A NOTICE OF CLAIM, BUT THE PERIOD OF DISABILITY DOES NOT TOLL THE ONE YEAR AND 90 DAY PERIOD FOR FILING A MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM (FIRST DEPT).

The First Department, reversing Supreme Court, determined the motion for leave to file a late notice claim against the NYC Transit Authority should not have been granted because the motion was made more than one year and 90 days after the cause of action accrued. Although physical incapacity can be a reasonable excuse for failing […]

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