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Entries by Bruce Freeman

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IN THIS CHILD VICTIMS ACT CASE, DEFENDANT COUNTY, WHICH HAD ASSUMED CUSTODY OF PLAINTIFF FOSTER CHILD, PLACED PLAINTIFF IN DEFENDANT SCHOOL WHERE SHE ALLEGEDLY WAS SEXUALLY ABUSED BY A TEACHER DAILY FOR SIX MONTHS; THE ALLEGED FREQUENCY OF THE ABUSE RAISED A QUESTION OF FACT WHETHER DEFENDANTS HAD CONSTRUCTIVE NOTICE OF IT (SECOND DEPT).

he Second Department, reversing Supreme Court, determined this Child Victims Act (CPLR 214-g) action against the county and a school should not have been dismissed. The county had assumed custody over plaintiff, a foster child, and placed her in defendant school. Plaintiff alleged she was sexually abused by a teacher daily for six months. The […]

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A LAWSUIT ALLEGING NONCONSENSUAL SEXUAL TOUCHING PURSUANT TO THE ADULT SURVIVORS ACT (CPLR 214-J) NEED NOT ALLEGE PLAINTIFF’S INTIMATE PARTS WERE TOUCHED BY THE DEFENDANT TO STATE A CAUSE OF ACTION; IT IS ENOUGH THAT THE COMPLAINT ALLEGE PLAINTIFF WAS TOUCHED UNDER CIRCUMSTANCES WHICH AFFORDED THE DEFENDANT SEXUAL GRATIFICATION (SECOND DEPT).

The Second Department, reversing Supreme Court, in a full-fledged opinion by Justice Wilson, in a matter of first impression, determined that a complaint under the Adult Survivors Act (CPLR 214-j) need not allege the defendant touched plaintiff’s intimate parts to state a cause of action for nonconsensual sexual touching. Here defendant, a doctor, allegedly touched […]

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THE FACT THAT THE ARBITRATOR MADE ERRORS OF LAW DID NOT AFFECT THE VALIDITY OF THE AWARD BECAUSE THERE WAS A RATIONAL BASIS FOR THE RULING; ARBITRATION AWARDS ARE LARGELY UNREVIEWABLE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the fact that the arbitrator in this no-fault insurance dispute made errors of law does not negate the validity of the arbitrator’s ruling. As long as the arbitrator’s award has a rational basis it is largely unreviewable: “[A]n arbitrator’s rulings, unlike a trial court’s, are largely unreviewable” … […]

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ALTHOUGH THE OFFICER WAS RESPONDING TO AN EMERGENCY WHEN PLAINTIFF’S VEHICLE WAS STRUCK, PLAINTIFF RAISED A QUESTION OF FACT WHETHER THE OFFICER ACTED WITH RECKLESS DISREGARD FOR THE SAFETY OF OTHERS; SPECIFICALLY QUESTIONS WERE RAISED ABOUT THE EXCESSIVE SPEED OF THE POLICE VEHICLE AND WHETHER THE SIREN WAS ON AS REQUIRED BY DEPARTMENT POLICY (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the defendant city was not entitled to summary judgment dismissing this action stemming from plaintiff’s vehicle being struck by a police vehicle responding to an emergency. Plaintiff raised a question of fact whether the police officer’s conduct rose to the level of reckless disregard for the safety of […]

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THE DEFENDANT DROVE THE SHOOTER TO AND AWAY FROM THE MURDER SCENE; BUT THERE WAS NO EVIDENCE DEFENDANT SHARED THE SHOOTER’S INTENT TO KILL; DEFENDANT’S MURDER CONVICTION AS AN ACCOMPLICE WAS NOT SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE AND WAS AGAINST THE WEIGHT OF THE EVIDENCE (FOURTH DEPT).

The Fourth Department, reversing defendant’s murder conviction and dismissing the indictment, determined the evidence that defendant drove to shooter to various locations, including the scend of the murder, there was no evidence defendant shared the shooter’s intent. Therefore the evidence was legally insufficient and the conviction was against the weight of the evidence: … [A] […]

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PLAINTIFF’S SUBMISSIONS RAISED A QUESTION OF FACT WHETHER THE ORAL AGREEMENT THAT DEFENDANT WOULD BUY PLAINTIFF’S HOUSE FOR $40,000, OTHERWISE VOID UNDER THE STATUTE OF FRAUDS, WAS ENFORCEABLE BECAUSE IT WAS PARTIALLY PERFORMED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined there was a question of fact whether part performance took the oral contract to purchase property out of the statute of frauds. Plaintiff allowed defendant to move in to plaintiff’s vacant house. At some point, plaintiff and defendant entered an oral agreement that defendant would buy the house […]

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EVERY STATEMENT DEFENDANT MADE AFTER HE TOLD THE OFFICERS “I AIN’T GOT NOTHING TO TALK ABOUT” SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT).

The Fourth Department, vacating defendant’s guilty plea, determined defendant had unequivocally asserted his right to remain silent and all statements defendant made thereafter should have been suppressed: After defendant indicated that he understood [the Miranda] rights, the officer asked whether defendant would agree to waive them and speak to the officer. Defendant did not respond […]

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THE TOWN AMBULANCE PARAMEDICS DECIDED NOT TO TAKE PLAINTIFF’S DECEDENT TO THE HOSPITAL; THAT DECISION WAS DISCRETIONARY IN NATURE ENTITLING THE TOWN TO GOVERNMENTAL FUNCTION IMMUNITY IN THIS MED MAL ACTION (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined the town defendants were entitled to immunity for the actions of the two ambulance paramedics who decided against taking the decedent to the hospital: “A municipality is immune from liability where the actions of its employees in performing governmental functions involve[ ] the exercise of discretion” … […]

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SUPREME COURT WENT BEYOND THE PARAMETERS OF THE REMITTAL BY ACCEPTING SUPPLEMENTAL ARGUMENTS ON NEW CASE LAW AND BY RENDERING A DECISION ON GROUNDS NOT INCLUDED IN THE REMITTAL; DISMISSAL OF THE COMPLAINT REVERSED, DEFAMATION CAUSES OF ACTION REINSTATED (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined Supreme Court went beyond the parameters of the remittal. Supreme Court had dismissed the complaint. The Fourth Department reinstated several defamation causes of action: We agree with plaintiff that the court impermissibly expanded the scope of the remittal. “[A] trial court, upon a remand or remittitur, is […]

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THE FACT THAT THE CHILD LIVED WITH THE GRANDMOTHER FOR FOUR YEARS WAS AN “EXTRAORDINARY CIRCUMSTANCE” WHICH AFFORDED GRANDMOTHER STANDING TO SEEK CUSTODY (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined grandmother had demonstrated “extraordinary circumstances” such that she had standing to seek custody: … [T]he grandmother met her burden of demonstrating other extraordinary circumstances with respect to both the mother and the father. The Court of Appeals has explained that “[i]n the absence of ‘surrender, abandonment, persisting neglect, […]

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