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Entries by Bruce Freeman

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HERE THE COURT OF APPEALS CLARIFIED ITS DEFINITION OF “TESTIMONIAL” EVIDENCE; A FORM DOCUMENT USED TO COLLECT PEDIGREE INFORMATION FROM EVERY NYC ARRESTEE IS NOT “AN OUT-OF-COURT SUBSTITUTE FOR TRIAL TESTIMONY,” I.E., THE FORM DOCUMENT IS NOT “TESTIMONIAL” AND CAN BE INTRODUCED AT TRIAL AS A BUSINESS RECORD WITHOUT THE TESTIMONY OF THE CREATOR OF THE DOCUMENT; HERE THE DOCUMENT INDICATED DEFENDANT LIVED IN THE BASEMENT AND WAS USED AT TRIAL TO PROVE HE CONSTRUCTIVELY POSSESSED A WEAPON FOUND IN THE BASEMENT (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge Halligan, over an extensive dissenting opinion, determined a document created by the Criminal Justice Agency (CJA), which provides pretrial services in NYC, was not “testimonial” in nature and therefore could be introduced in evidence as a business record without affording the defendant the opportunity to […]

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PLAINTIFF BROUGHT AN EMPLOYMENT DISCRIMINATION AND RETALIATION ACTION IN FEDERAL COURT; DEFENDANTS WERE AWARDED SUMMARY JUDGMENT IN THE FEDERAL ACTION; BECAUSE THE FEDERAL COURT DID NOT EXERCISE SUPPLEMENTAL JURISDICTION OVER PLAINTIFF’S NYS AND NYC HUMAN RIGHTS LAW CAUSES OF ACTION, PLAINTIFF PURSUED THEM IN STATE COURT; HOWEVER ALL THE STATE ISSUES HAD BEEN ADDRESSED IN THE FEDERAL ACTION; COLLATERAL ESTOPPEL PRECLUDED THE STATE ACTION (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Garcia, over an extensive dissenting opinion, determined that the employment discrimination and retaliation claims brought by plaintiff adjunct professor against New York University under the NYS and NYC Human Rights Law were precluded by the doctrine of collateral estoppel. Plaintiff had brought a federal action […]

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A GAP IN THE CHAIN OF CUSTODY OF THE DRUGS SEIZED FROM DEFENDANT AND A DISCREPANCY IN THE DESCRIPTIONS OF THE BAG CONTAINING THE DRUGS DID NOT RENDER THE DRUGS INADMISSIBLE (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Cannataro, over a two-judge dissent, determined a gap in the chain of custody and a discrepancy in the descriptions of the evidence did not render the evidence (white powder in plastic bags) inadmissible. Officer Lin, who seized the evidence, noted a rip in the larger […]

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DOCCS MUST MAKE SOME EFFORT TO FIND COMMUNITY-BASED EMPLOYMENT, EDUCATIONAL OR TRAINING OPPORTUNITIES FOR SEX OFFENDERS HELD IN THE RESIDENTIAL TREATMENT FACILITY AT FISHKILL CORRECTIONAL FACILITY (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Troutman, over two partial dissents by three judges, reversing (modifying) the appellate division, determined the Department of Corrections and Community Supervision (DOCCS) must make some effort to find community-based employment, educational or training opportunities for sex offenders held in the residential treatment facility (RTF) at […]

CLAIMANT PARTICIPATED IN THE CLEAN UP AFTER THE WORLD TRADE CENTER ATTACK ON 9-11 AND WAS THEREFORE ENTITLED TO WORKERS’ COMPENSATION BENEFITS UNDER ARTICLE 8-A (THIRD DEPT).

The Third Department, reversing (modifying) the Workers’ Compensation Board, determined that some of the World Trade Center clean-up activities of the claimant qualified for benefits pursuant to Workers’ Compensation Law article 8-A: “Workers’ Compensation Law article 8-A was enacted to remove statutory obstacles to timely claims filing and notice for latent conditions resulting from hazardous […]

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THE COMPLAINT SUFFICIENTLY ALLEGED BOTH BREACH OF CONTRACT AND ANTICIPATORY REPUDIATION OF THE CONTRACT (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Wilson, in a factually-complex case which cannot be fairly summarized here. determined the complaint adequately alleged both a breach and an anticipatory repudiation of a contract which encompassed the replacement by plaintiff developer of defendant’s single room occupancy building with a mixed-use residential and commercial […]

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ALLOWING EVIDENCE OF UNCHARGED CRIMES AND BAD ACTS UNDER MOLINEUX, AND ALLOWING DEFENDANT HARVEY WEINSTEIN TO BE CROSS-EXAMINED ABOUT THOSE UNCHARGED ALLEGATIONS UNDER SANDOVAL, DEPRIVED HIM OF A FAIR TRIAL; CRIMINAL SEXUAL ACT AND RAPE CONVICTIONS REVERSED AND NEW TRIAL ORDERED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Rivera, over two three-judge dissenting opinions, reversing defendant’s criminal-sexual-act and rape convictions and ordering a new trial, determined the admission of evidence of uncharged crimes and bad acts under Molineux and the Sandoval ruling allowing the defendant to be cross-examined about the uncharged allegations, deprived […]

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DEFENDANT CARPET AND FLOORING SUBCONTRACTOR’S REQUEST TO INSPECT THE AREA OF THE FLOOR WHERE PLAINTIFF ALLEGEDLY STEPPED INTO AN UNGUARDED VENT HOLE SHOULD HAVE BEEN GRANTED; ALTHOUGH THE VENT COVER HAD BEEN REPLACED, IT CAN NOT BE SAID THE INSPECTION WOULD BE FRUITLESS, OR THAT THE INSPECTION WOULD CAUSE UNREASONABLE ANNOYANCE, EXPENSE, EMBARRASSMENT OR OTHER PREJUDICE (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant carpet and flooring subcontractor’s (S&’s) request to inspect the area of the building where plaintiff stepped into a vent hole from which a cover had been dislodged should not have been denied. Although the vent cover had been replaced, it could not be said for certain that […]

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A NOTICE OF VIOLATION FROM THE CITY TO THE ABUTTING PROPERTY OWNER REGARDING THE DETERIORATED CONDITION OF THE SIDEWALK RAISED A QUESTION OF FACT WHETHER THE CITY HAD WRITTEN NOTICE OF THE SIDEWALK DEFECT (A PROTRUDING METAL BAR) WHICH CAUSED PLAINTIFF’S SLIP AND FALL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff had raised a question of fact whether the city had notice of the condition of the sidewalk which allegedly caused her slip and fall; Plaintiff demonstrated a notice of violation had been issued to the abutting property owner concerning the deterioration of the sidewalk. Plaintiff had alleged […]

IF THE ORIGINAL PROCESS SERVER’S AFFIDAVIT OF SERVICE FAILS TO INCLUDE A STATEMENT THAT A MAILING IN COMPLIANCE WITH CPLR 308(2) WAS DONE, THE OMISSION CANNOT BE CURED BY AMENDMENT; THE AMENDED AFFIDAVIT SHOULD NOT HAVE BEEN CONSIDERED BY THE COURT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the amended affidavit of the process server to add the mailing requirement should not have been accepted by the court. Failing to aver the complaint was mailed in the original affidavit cannot be cured by amendment: CPLR 308(2) provides that personal service upon a natural person may be […]

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