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Entries by Bruce Freeman

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RIDING A BICYCLE ON A PUBLIC PATH USED BY BOTH BICYCLISTS AND PEDESTRIANS IS NOT A RECREATIONAL ACTIVITY WHICH TRIGGERS THE ASSUMPTION OF THE RISK DOCTRINE (SECOND DEPT).

The Second Department, reversing the Court of Claims in this bicycle-fall case, determined the assumption of the risk doctrine did not apply. Plaintiff was riding on public path which was not a designated venue for bicycling when he hit an area of broken asphalt: … [T]he Court of Claims erred in determining that the path […]

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PETITIONER’S FOIL REQUEST FOR DOCUMENTS AND EVIDENCE RELATING TO HIS MURDER CONVICTION SHOULD NOT HAVE BEEN DENIED ON THE GROUND RESPONDING TO THE REQUEST WOULD INTERFERE WITH PETITIONER’S HABEAS CORPUS PROCEEDINGS IN FEDERAL COURT; THE FEDERAL COURT HAD ISSUED A STAY-IN-ABEYANCE ORDER TO ALLOW PETITIONER TO EXHAUST HIS STATE REMEDIES (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Wan, addressing a matter of first impression, determined petitioner’s FOIL request for documents and evidence related to his murder prosecution should not have been denied on the ground that granting the request would interfere with petitioner’s pending habeas corpus proceedings in federal court. The federal court issued a […]

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THERE ARE QUESTIONS OF FACT WHETHER DEFENDANT POLICE OFFICER ACTED IN RECKLESS DISREGARD FOR THE SAFETY OF OTHERS DURING A HIGH-SPEED CHASE; THE PURSUED CAR STRUCK PLAINTIFF’S CAR; THE ACTION AGAINST THE OFFICER AND THE TOWN SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the action against a town police officer (Cunningham) and the town alleging the officer acted in reckless disregard for the safety of others during a high speed chase should not have been dismissed. The car which was pursued by Cunningham struck plaintiff’s (Kolvenbach’s) car: … [T]he Town defendants […]

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THE COUNTERCLAIM FOR LOST PROFITS DID NOT DEMONSTRATE “LOST PROFITS” AS CONSEQUENTIAL DAMAGES WAS CONTEMPLATED BY THE PARTIES AT THE TIME THE CONTRACT FOR THE SALE OF GOODS WAS ENTERED; THE MOTION TO DISMISS THE COUNTERCLAIM SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the motion to dismiss the defendant’s counterclaim for lost profits should not have been converted to a summary judgment motion and the counterclaim must be dismissed because defendant did not demonstrate consequential damages for lost profits was contemplated by the parties when the contract for the sale of […]

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THE NYC LOCAL LAW ALLOWING NON-CITIZENS TO VOTE IN MUNICIPAL ELECTIONS IS INVALID (SECOND DEPT).

The Second Department, in a comprehensive opinion by Justice Wooten, over a comprehensive partial concurrence and partial dissent, determined that a NYC Local Law which allowed non-citizens to vote in NYC municipal elections is invalid. The opinion addressed in detail the standing of the different categories of plaintiffs and the validity of the Local Law […]

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WHERE MODIFICATION OF A SECURING ORDER (RELEASE ON BAIL) IS NOT BASED UPON RISK OF FLIGHT, BUT RATHER IS BASED UPON THE COMMISSION OF FELONIES WHILE RELEASED ON BAIL, A FULL EVIDENTIARY HEARING MUST BE HELD, OR, IN THE ALTERNATIVE, THE PEOPLE CAN SUBMIT TRANSCRIPTS OF GRAND JURY TESTIMONY (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Garcia, clarified the appropriate procedures for modifying a securing order when a defendant who has been released on bail is alleged to have committed other crimes: While out on bail after his arrest for a felony, defendant was arrested three times for additional violent felonies. […]

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THE JURY NOTE REQUESTED THE “DEFINITIONS” OF THE CHARGED OFFENSES; DEFENSE COUNSEL ASKED THE JUDGE TO ALSO REREAD THE JUSTIFICATION INSTRUCTION IN THIS MURDER CASE; THE JUDGE REFUSED; BECAUSE THE JURY’S NOTE WAS SPECIFIC AND DID NOT REQUEST THE JUSTIFICATION INSTRUCTION, THE JUDGE PROPERLY DENIED DEFENSE COUNSEL’S REQUEST (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Singas, with a concurrence, affirming defendant’s convictions in this murder, attempted murder and assault case, determined the judge did not err by denying defense counsel’s request to reread the justification jury instruction after the jury sent out a note asking for the definitions of the […]

THE COVID PROTOCOLS WERE IN EFFECT DURING DEFENDANT’S TRIAL; THE JURORS WERE REQUIRED TO WEAR FACE MASKS WHEN THEY WERE NOT BEING INDIVIDUALLY QUESTIONED DURING VOIR DIRE; THE INABILTY TO SEE THE JURORS’ FULL FACES DID NOT DEPRIVE DEFENDANT OF HIS RIGHT TO BE PRESENT DURING JURY SELECTION AND DID NOT VIOLATE HIS DUE PROCESS RIGHTS (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Cannataro, affirming defendant’s convictions, determined defendant’s inability to see jurors’ facial expressions during voir dire, because of the COVID mask-wearing requirement, did not deprive him of the opportunity to be present during jury selection and did not deprive him of due process of law. Although […]

HERE SLIPPERY PLASTIC SHEETING WAS USED TO PROTECT AN ESCALATOR DURING A PAINTING PROJECT; PLAINTIFF, A PAINTER, SLIPPED AND FELL WHEN HE STEPPED ONTO THE PLASTIC; THE PLASTIC SHOULD BE VIEWED AS A “FOREIGN SUBSTANCE,” LIKE ICE OR GREASE, WITHIN THE MEANING OF THE INDUSTRIAL CODE; IN ADDITION, THE PLASTIC SHOULD NOT BE VIEWED AS “INTEGRAL TO THE JOB” WITHIN THE MEANING OF THE INDUSTRIAL CODE BECAUSE THERE WERE SAFER ALTERNATIVES (CT APP).

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Rivera, with a three-judge concurring opinion by Judge Garcia, determined the plastic sheeting placed on an escalator during painting was a “foreign substance” within the meaning the Industrial Code and the sheeting was not “integral to the work” within the meaning […]

PLAINTIFF BOOK-PRINTER REPUDIATED ITS BOOK-PRINTING CONTRACT WITH DEFENDANT WHEN IT SOLD ITS PRINTING OPERATION TO A THIRD PARTY (FIRST DEPT). ​

The First Department, reversing (modifying) Supreme Court, in a full-fledged opinion by Justice Oing, determined plaintiff (EPAC) had repudiated its book-printing contract with defendant (Wiley) when it sold its printing operation to non-party LS-1. Therefore Wiley was entitled to summary judgment on EPAC’s breach of contract action: “A repudiation can be either ‘a statement by […]

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