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Entries by Bruce Freeman

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“GOOD CAUSE” FOR FILING A LATE SUMMARY JUDGMENT MOTION MUST BE DEMONSTRATED IN THE INITIAL MOTION PAPERS, NOT IN THE REPLY PAPERS (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the defendant’s late summary judgment motion should not have been granted because the initial papers  did not demonstrate “good cause” for the late filing. The “good cause” allegations in defendant’s reply papers should not have been considered: Defendant’s motion was … untimely … and, thus, defendant was required […]

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THE SHOOTER, WHO WAS NEVER FOUND OR IDENTIFIED, WAS A PASSENGER IN A CAR DRIVEN BY DEFENDANT WHEN THE SHOOTER SHOT AT AND MISSED A PERSON SITTING IN A PARKED CAR; THE ATTEMPTED MURDER AND ASSAULT CONVICTIONS WERE AGAINST THE WEIGHT OF THE EVIDENCE; TWO-JUSTICE DISSENT (FOURTH DEPT).

The Fourth Department, reversing defendant’s attempted murder and assault convictions as against the weight of the evidence, over a two-justice dissent, determined there was no evidence defendant shared the shooter’s intent. It was alleged defendant was the driver when his passenger shot at and missed a person sitting in a parked car. The shooter was […]

DEFENDANT IN THIS LADDER-FALL CASE RAISED A QUESTION OF FACT WHETHER PLAINTIFF MISSED A STEP AND WAS THEREFORE THE SOLE PROXIMATE CAUSE OF THE FALL; A TWO-JUSTICE DISSENT DISAGREED (FOURTH DEPT).

The Fourth Department determined defendant in this ladder-fall case raised a question of fact whether plaintiff was the sole proximate cause of his fall. The two-justice dissent disagreed: We conclude that plaintiff met his initial burden on the motion of establishing that the ladder was “not so placed . . . as to give proper […]

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FORMER AND CURRENT SECTION 413 OF THE SOCIAL SERVICES LAW REQUIRES THE REPORTING OF ANY SUSPECTED INTENTIONAL INFLICTION OF SERIOUS PHYSICAL INJURY UPON A CHILD, WHICH INCLUDES SEXUAL ABUSE, EVEN WHEN THE PERSON SUSPECTED OF THE ABUSE IS NOT LEGALLY RESPONSIBLE FOR THE CARE OF THE CHILD; TWO JUSTICE DISSENT (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, determined former section 413 of Social Services Law, as the current section mandates, requires that all instances of suspected intentionally inflicted serious injury upon a child be reported, regardless of who is suspected of inflicting it. In other words, the suspected intentional infliction of serious injury upon a […]

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PROOF OF THE VALUE OF STOLEN PROPERTY WAS INSUFFICIENT; CONVICTION REDUCED IN THE INTEREST OF JUSTICE (FOURTH DEPT).

The Fourth Department, reducing defendant’s possession-of-stolen-property conviction, determined the value of the property was not established: We agree with defendant that, with respect to his conviction of criminal possession of stolen property in the third degree under count 1 of the indictment, there is legally insufficient evidence establishing the value of the items seized from […]

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FAMILY COURT SHOULD NOT HAVE SUSPENDED FATHER’S VISITATION WITHOUT MAKING FINDINGS OF FACT, MATTER REMITTED (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined Family Court should not have suspended father’s visitation without making findings of fact: The father … contends that the court failed to make any factual findings whatsoever to support the determination to suspend the father’s visitation with the child, and that the matter should be remitted to allow […]

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THE MEDICAL MALPRACTICE ACTION AGAINST THE RESIDENT WHO PERFORMED THE SURGERY UNDER THE SUPERVISION OF ANOTHER SURGEON SHOULD HAVE BEEN DISMISSED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the medical malpractice action against the resident who performed the surgery (Kent) should have been dismissed because the resident was acting under the supervision of another surgeon (Doak): With respect to the appeal by Kent and the Kaleida Health defendants, we conclude that Supreme Court erred in denying […]

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ALTHOUGH PLAINTIFF WAS AWARDED SUMMARY JUDGMENT IN THIS QUANTUM MERUIT CASE. DEFENDANT DID NOT WAIVE A JURY TRIAL AND WAS THEREFORE ENTITLED TO A JURY TRIAL ON DAMAGES; BENCH-TRIAL VERDICT REVERSED (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined defendant never waived a jury trial in this quantum-meruit action. Therefore, although plaintiff was granted summary judgment, defendant was entitled to a jury trial on damages: … [T]he order awarding damages must be reversed, and the judgment vacated … . Upon granting plaintiff summary judgment for liability […]

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WHEN DEFENDANT MADE STATEMENTS AT THE TIME OF THE PLEA WHICH RAISED A POSSIBLE INTOXICATION DEFENSE THE JUDGE SHOULD HAVE INQUIRED FURTHER; THE ISSUE NEEDN’T BE PRESERVED FOR APPEAL (FIRST DEPT).

The First Department, vacating defendant’s guilty plea, determined the defendant’s statement at the time of the plea raised questions the judge should have explored. A narrow exception to the preservation requirement applies here: The narrow exception to the preservation requirement applies in this “rare case” where defendant made statements that cast doubt upon his guilt […]

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THE JUDGE SHOULD NOT HAVE REJECTED PLAINTIFF’S EXPERT’S OPINION BECAUSE SHE WAS A REGISTERED NURSE, NOT A DOCTOR; THE REGISTERED NURSE WAS QUALIFIED TO OFFER AN OPINION ON FALL PREVENTION; AN EXPERT’S QUALIFICATIONS SPEAK TO THE WEIGHT OF THE OPINION EVIDENCE, NOT ADMISSIBILITY (FIRST DEPT).

The First Department, reversing Supreme Court, determined the evidence submitted by plaintiff’s expert, a registered nurse, should not have been rejected because she was not a physician. Plaintiff’s decedent was a nursing-home patient with dementia who fell. The registered nurse was qualified to offer opinion evidence about measures to prevent elderly patients from falling: Supreme […]

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