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Entries by Bruce Freeman

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IT WAS NOT CLEAR FROM THE RECORD WHETHER THE JUDGE IMPROPERLY DEEMED YOUTHFUL OFFENDER STATUS TO HAVE BEEN WAIVED BY THE PLEA, OR WHETHER THE JUDGE REJECTED YOUTHFUL OFFENDER STATUS AFTER CONSIDERING IT AS REQUIRED; MATTER REMITTED (FIRST DEPT).

The First Department, remanding the matter for consideration of youthful offender status, determined it was not clear from the record whether the judge improperly denied youthful offender status because it has been waived by the plea or whether youthful offender status had been considered and rejected: Although the court stated at sentencing that it would […]

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BECAUSE THE RESPONDENT CREATED AMBIGUITY ABOUT WHETHER IT WAS STILL CONSIDERING PETITIONER’S FOIL REQUEST AFTER EXPIRATION OF THE 10-DAY CONSTRUCTIVE-DENIAL PERIOD, THE FOUR-MONTH PERIOD FOR COMMENCING AN ARTICLE 78 PROCEEDING DID NOT START ON THE CONSTRUCTIVE-DENIAL DATE; THE ARTICLE 78 PROCEEDING WAS TIMELY COMMENCED (FIRST DEPT).

The First Department, reversing Supreme Court, determined that the respondent Office of Court Administration (OCA) gave petitioner the impression it was still considering petitioner’s FOIL request after the 10-day period for a response from the OCA expired on May 27, 2022. The OCA produced some documents on June 27, 2022. Therefore, the four-month period for […]

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THE COMPLAINT STATED CAUSES OF ACTION AGAINST NYC ALLEGING CONSTITUTIONAL AND STATUTORY VIOLATIONS STEMMING FROM AN UNEQUAL AND DISCRIMINATORY PROPERTY TAX SCHEME (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Rivera, over a two-judge partial dissent and a one-judge partial dissent, reversing (modifying) the appellate division, determined the complaint stated causes action for constitutional and statutory violations of the Real Property Tax Law (RPTL) and the federal Fair Housing Act (FHA) relating to an unequal […]

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JUDICIARY LAW 487 CREATES A PRIVATE RIGHT OF ACTION AGAINST AN ATTORNEY FOR DECEIT OR FRAUD ON THE COURT OR ANY PARTY TO A LAWSUIT; HERE THE PROOF OF DECEIT OR FRAUD WAS LACKING (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Halligan, determined Judiciary Law section 487 creates a private right of action seeking damages for deceit by an attorney, Here plaintiff alleged her attorney in a medical malpractice action defrauded the court in the calculation of attorney’s fees. The Court of Appeals sided with plaintiff […]

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THE MAJORITY HELD SUPREME COURT PROPERLY ALLOWED PLAINTIFFS TO FILE AN AMENDED COMPLAINT AFTER THE COMPLAINT HAD BEEN DISMISSED WITHOUT PREJUDICE BY THE APPELLATE DIVISION BECAUSE COUNTERCLAIMS WERE STILL BEFORE THE COURT (CT APP).

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Wilson, over a three-judge dissenting opinion, determined that plaintiffs were properly allowed to amend their complaint, which had been dismissed without prejudice, because counterclaims were still before the court: … [T]he Appellate Division dismissal of the second amended complaint due to […]

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THE NYPD’S FAILURE TO TIMELY COMPLY WITH A COURT ORDER REQUIRING THE RELEASE OF DOCUMENTS PURSUANT TO A FOIL REQUEST WARRANTED THE AWARD OF ATTORNEY’S FEES TO PETITIONER; RESPONDENT NYPD’S ABANDONING AN ISSUE IN A PRIOR APPEAL PRECLUDED APPELLATE REVIEW OF THAT ISSUE IN A SUBSEQUENT APPEAL (FIRST DEPT).

The First Department determined the NYPD’s failure to timely comply with a court order mandating a response to petitioner’s FOIL request warranted the award of attorney’s fees to petitioner: … [T]he court properly granted attorney’s fees and costs arising from NYPD’s noncompliance with this Court’s prior order. NYPD’s argument, that this noncompliance was justified because […]

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NEW FACTS RENDERED THE RECORD INSUFFICIENT FOR APPELLATE REVIEW IN THIS TERMINATION-OF-PARENTAL-RIGHTS PROCEEDING; MATTER REMITTED FOR A “BEST INTERESTS OF THE CHILDREN” HEARING (FOURTH DEPT).

The Fourth Department, sending the matter back for a “best interests of the children” hearing in this termination-of-parental rights proceeding, determined new facts prohibited an adequate review: … [T]he three oldest children, along with the father, assert that new facts and allegations warrant remittal for a new dispositional hearing to determine the best interests of […]

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UNDER THE CIRCUMSTANCES, THE PETITIONER’S REQUEST TO CONTINUE THE TRIAL WITH ELEVEN JURORS SHOULD HAVE BEEN GRANTED; IN ADDITION IT WAS AN ABUSE OF DISCRETION TO DECLARE A MISTRIAL ON ALL COUNTS WITHOUT INQUIRING WHETHER A VERDICT HAD BEEN REACHED ON ANY OF THE COUNTS; RETRIAL OF THIS MURDER CASE PROHIBITED ON DOUBLE JEOPARDY GROUNDS; WRIT OF PROHIBITION GRANTED (FOURTH DEPT).

The Fourth Department, granting petitioner’s request for a writ of prohibition, determined retrial of this murder case was prohibited on double jeopardy grounds. Apparently one juror (juror number five) had done independent research on the charge of murder in the second degree and jurors had complained about racial tension in the jury room, implicating the […]

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DEFENDANT WAS NOT INFORMED OF ALL THE DIRECT CONSEQUENCES OF THE GUILTY PLEA, INCLUDING THE FINE; GUILTY PLEA VACATED (FOURTH DEPT). ​

The Fourth Department, vacating defendant’s conviction to driving while ability impaired by drugs, determined the sentencing judge did not inform defendant of the direct consequences of the guilty  plea: “It is well settled that, in order for a plea to be knowingly, voluntarily and intelligently entered, a defendant must be advised of the direct consequences of […]

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