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Entries by Bruce Freeman

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A RULING ON A MOTION TO DISMISS DEALS ONLY WITH THE SUFFICIENCY OF THE PLEADINGS AND DOES NOT CONSTITUTE THE LAW OF THE CASE WITH RESPECT TO A SUBSEQUENT MOTION FOR SUMMARY JUDGMENT (FOURTH DEPT). ​

The Fourth Department, reversing the Court of Claims, determined the judge improperly refused to consider evidence submitted by defendants in opposition to claimant’s summary judgment motion citing the law of the case doctrine. The judge’s “law of the case” ruling, however, was based on her prior ruling on a motion to dismiss. Because a motion […]

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A SIROIS HEARING TO DETERMINE WHETHER WITNESSES ARE UNAVAILABLE TO TESTIFY BECAUSE OF INTIMIDATION IS A MATERIAL STAGE OF A TRIAL; DEFENDANT AND DEFENSE COUNSEL WERE EXCLUDED FROM THE HEARING; NEW TRIAL ORDERED (FOURTH DEPT). ​

The Fourth Department, reversing the conviction and ordering a new trial, determined the judge should not have conducted the Sirois hearing, which is a material stage of a trial, in the absence of defendant and defense counsel. The hearing determined two witnesses were unavailable to testify because of intimidation. Defense counsel was allowed to submit […]

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A PRIOR RULING IN A PRIOR ACTION FINDING THAT THE WITHHELD DOCUMENTS WERE PROTECTED FROM DISCLOSURE DID NOT INDICATE THE SPECIFIC PRIVILEGE WHICH APPLIED TO EACH DOCUMENT; THEREFORE THE PRIOR RULING DID NOT TRIGGER THE COLLATERAL ESTOPPEL DOCTRINE AND THE DISCLOSURE OF DOCUMENTS MUST BE DETERMINED ANEW IN THE INSTANT ACTION (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined a prior ruling in a prior action finding that withheld documents were protected from disclosure did not trigger the collateral estoppel doctrine in the instant action because the prior ruling did not indicate the specific privilege invoked for each document: … [T]he court abused its discretion in summarily […]

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DEFENDANT WAS NOT GIVEN PRIOR NOTICE OF THE JUDGE’S SUA SPONTE DECISION TO ASSESS 25 POINTS FOR A RISK FACTOR WHEN THE SORA BOARD SUGGESTED FIVE AND THE PEOPLE AGREED TO FIVE; NEW HEARING ORDERED (FOURTH DEPT).

The Fourth Department, vacating the SORA risk-level assessment and remitting the matter for a new hearing, determined the defendant did not have notice of the judge’s sua sponte assessment of 25 points for risk factor 2, when both the SORA Board and the People recommended a five point assessment: … [T]he court assessed 25 points […]

ALTHOUGH THE BUILDING IS OWNED BY A NOT-FOR-PROFIT CORPORATION WHICH RAISES FUNDS FOR HEALTHCARE SERVICES, THE BUILDING IS LEASED TO A FOR-PROFIT CORPORATION WHICH PROVIDES DIALYSIS; THE LEASED BUILDING, THEREFORE IS NOT EXEMPT FROM PROPERTY TAX PURSUANT TO RPTL 420-A (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Rivera, over a three-judge dissenting opinion, determined the property at issue, which is leased by a for-profit corporation, is not entitled to exemption from property taxes pursuant to Real Property Tax Law (RPTL) 420-a: Petitioner Samuel and Bertha Schulman Institute for Nursing and Rehabilitation Fund, […]

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CONSULT THIS OPINION FOR IN-DEPTH DISCUSSIONS OF WHEN POSTREADINESS DELAY SHOULD BE ATTRIBUTED TO THE PEOPLE; THE DISSENT ARGUED THIS RULING UPENDS DECADES OF PRECEDENT BY ATTRIBUTING A DELAY ATTRIBUTABLE TO THE COURT TO THE PEOPLE, RESULTING IN A SPEEDY-TRIAL VIOLATION (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge Wilson, over an extensive three-judge dissenting opinion, reversed defendant’s misdemeanor (reckless driving) conviction on speedy-trial grounds. The majority and dissenting opinions are comprehensive and cannot be fairly summarized here. The opinions should be consulted for in depth discussions of how postreadiness delays should be calculated. […]

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RECORDS ASSOCIATED WITH AN ARREST AND PROSECUTION AND PRISON MEDICAL RECORDS ALLEGEDLY RELATING TO AN ATTACK BY CORRECTION OFFICERS WERE NOT SUFFICIENT TO DEMONSTRATE THE RESPONDENT CITY HAD ACTUAL TIMELY NOTICE OF THE ASSOCIATED CLAIMS; LEAVE TO FILE LATE NOTICES OF CLAIM SHOULD NOT HAVE BEEN GRANTED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Troutman, reversing the Appellate Division, over a two-judge dissent in one case (Jaime) and concurrences in the other (Orozco), determined that the petitions for leave to file a late notice of claim, brought by the same attorney for the two petitioners, should not have been […]

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THE CITY OF KINGSTON PROPERLY DECLARED A RENTAL-UNIT SHORTAGE-EMERGENCY AND PROPERLY IMPOSED LIMITATIONS ON RENT INCREASES DURING THE EMERGENCY PERIOD (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Egan, reversing (modifying) Supreme Court, determined the respondent City of Kingston properly declared a rental-unit shortage emergency and properly imposed limits on rent increases during the emergency period. Apparently the City of Kingston experienced an influx of new residents moving from New York City during the […]

ALTHOUGH THE PLAINTIFF WAS STANDING ON A LADDER WHEN THE DEFECTIVE GRINDER INJURED HIM, THE LADDER DID NOT FAIL AND THE LABOR LAW 240(1) ACTION WAS PROPERLY DISMISSED; HOWEVER THE DEFECTIVE GRINDER PRESENTED A SAFETY ISSUE COVERED BY LABOR LAW 241(6) AND THE OWNER AND GENERAL CONTRACTOR MAY BE LIABLE EVEN IF THEY DID NOT SUPERVISE THE WORKSITE (FIRST DEPT). ​

The First Department, reversing (modifying) Supreme Court, determined the Labor Law 240(1) cause of action was properly dismissed because the ladder did not malfunction, but the Labor Law 241(6) cause of action based upon the defective grinder which kicked back and injured plaintiff should not have been dismissed. The court noted defendants had notice of […]

TO STATE A CAUSE OF ACTION FOR DEFAMATION THE COMPLAINT MUST ALLEGE THE ACTUAL WORDS, WHEN THE STATEMENTS WERE MADE AND TO WHOM THE STATEMENTS WERE MADE; ALLEGING THE “GENERAL CONTENT” OF THE STATEMENTS WITHOUT SPECIFYING WHEN AND TO WHOM THEY WERE MADE IS NOT ENOUGH (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the complaint in this defamation action was deficient in that the actual words alleged to have been defamatory, the dates the statements were made, and the persons to whom the statements were made were not described. …[T]he complaint fails to state a viable defamation claim, since it does […]

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