You are here: / Bruce Freeman

Entries by Bruce Freeman

, ,

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 […]

,

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 […]

, ,

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 […]

, ,

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 […]

, ,

TRESPASS BY PERMANENT PHYSICAL ENCROACHMENT (PLUMBING PIPES) IS NOT SUBJECT TO THE SAME STATUTE OF LIMITATIONS ANALYSIS AS TRESPASS BY THE ARTIFICIAL DIVERSION OF WATER; TRESPASS BY PERMANENT PHYSICAL ENCROACHMENT IS A CONTINUING TRESPASS UNTIL THE EXPIRATION OF THE TIME PERIOD FOR ADVERSE POSSESSION OR AN EASEMENT BY PRESCRIPTION (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the trespass cause of action should not have been dismissed as time-barred. A trespass claim based upon a permanent physical encroachment (here plumbing pipes connected to a septic system) is a continuing trespass which gives rise to successive trespass causes of action until the expiration of the time period for […]

,

PLAINTIFF REAL ESTATE DEVELOPER’S PRIVATE NUISANCE, PUBLIC NUISANCE AND NEGLIGENCE CAUSES OF ACTION BASED UPON THE ALLEGED NOXIOUS ODORS FROM DEFENDANT’S LANDFILL SHOULD HAVE BEEN DISMISSED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the plaintiff real estate developer causes of action against defendant landfill operation for private nuisance, public nuisance and negligence, based upon noxious odors from the landfill, should have been dismissed: Plaintiff alleged the odors made it difficult to sell homes and reduced the value of properties in the […]

IT WAS FORESEEABLE THAT DIESEL FUMES FROM A BOOM LIFT USED BY PLAINTIFF FOR INTERIOR PAINTING WOULD ACCUMULATE AND CAUSE DIZZINESS RESULTING IN PLAINTIFF’S FALL FROM THE LIFT; PLAINTIFF’S LABOR LAW 240(1) CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined plaintiff’s Labor Law 240(1) cause of action should not have been dismissed. Plaintiff was spray painting the interior of a factory using a boom lift when he became dizzy and fell from the lift. Plaintiff diesel fumes from the lift accumulated above him, causing the dizziness: … [I]t is undisputed […]

, , ,

THE SUPPRESSION COURT APPLIED THE WRONG “DEBOUR” LEVEL TO THE INITIAL INQUIRY BY THE OFFICER WHO APPROACHED DEFENDANT AND REQUESTED THAT HE STEP OUT OF THE CAR; BECAUSE THE SUPPRESSION ISSUE HAD NOT BEEN RULED UPON UNDER THE CORRECT “DEBOUR” STANDARD, THE APPELLATE COURT COULD NOT CONSIDER THE ISSUE AND THE MATTER WAS REMITTED FOR A RULING UNDER THE CORRECT “DEBOUR” STANDARD (FOURTH DEPT).

The Fourth Department, reserving decision, remitted the matter for another ruling on defendant’s suppression motion. The trial judge determined that the police officer conducted a level one (DeBour) inquiry when he ordered the defendant out of the car. In fact, the officer conducted a level three inquiry which required reasonable suspicion of criminal activity. Because […]

PROMOTING PROSTITUTION CONVICTIONS REVERSED BECAUSE THE PROMOTING PROSTITUTION COUNTS ARE INCLUSORY CONCURRENT COUNTS OF SEX TRAFFICKING (FOURTH DEPT). ​

The Fourth Department dismissed the “promoting prostitution” counts of the indictment as inclusory concurrent counts of sex trafficking: We note … that count 15 of the indictment, charging defendant with promoting prostitution in the second degree (Penal Law § 230.30 [1]), is an inclusory concurrent count of sex trafficking as charged in counts 12, 13, […]

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy