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Entries by Bruce Freeman

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WHERE THE MUNICIPALITY HAS TIMELY KNOWLEDGE OF THE POTENTIAL LAWSUIT AND HAS CONDUCTED A TIMELY INVESTIGATION INTO THE ALLEGATIONS, LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD NOT BE DENIED SOLELY BECAUSE PETITIONER DOES NOT HAVE A REASONABLE EXCUSE FOR FAILING TO FILE ON TIME (SECOND DEPT).

The Second Department, reversing Supreme Court, determined leave to file a late notice of claim against the town should have been granted. Petitioner was convinced a neighbor had trapped her cat and taken the cat to the town animal shelter. She communicated with the shelter many times and ultimately petitioner sought to sue the town […]

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PLAINTIFF’S MOTION FOR A UNIFIED TRIAL (LIABILITY AND DAMAGES) IN THIS PEDESTRIAN-VEHICLE TRAFFIC ACCIDENT CASE SHOULD HAVE BEEN GRANTED; THE NATURE OF THE INJURIES WAS RELEVANT TO HOW THE ACCIDENT OCCURRED (SECOND DEPT).

The Second Department, reversing the defense verdict and ordering a new trial, determined plaintiff’s motion for a unified trial on liability and damages should have been granted. Plaintiff was crossing a street when she was struck by defendant’s vehicle which was making a left turn across the crosswalk. Defendant alleged plaintiff walked into the side […]

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DEFENDANT OPENED THE DRIVER’S-SIDE DOOR OF HIS PARKED CAR WITHOUT MAKING SURE IT WAS SAFE TO DO SO, A VIOLATION OF THE VEHICLE AND TRAFFIC LAW, AND PLAINTIFF WAS UNABLE TO AVOID STRIKING DEFENDANT’S CAR; PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON LIABILITY AND THE DISMISSAL OF THE COMPARATIVE-NEGLIGENCE AFFIRMATIVE DEFENSE (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined plaintiff was entitled to summary judgment in this traffic accident case. Defendant suddenly opened the driver’s side door of his parked car and plaintiff struck defendant’s car. Opening the door without  making sure it is safe to do so is a violation of the Vehicle and Traffic […]

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DEFENDANT’S INNOCENT TEMPORARY POSSESSION OF A WEAPON WAS THE RESULT OF HIS DISARMING A MAN WHO WAS ASSAULTING THE MAN’S WIFE; THE POSSESSION-OF-A-WEAPON CONVICTION REVERSED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Mendez, over a two-justice dissenting opinion, determined defendant’s temporary possession of a weapon was not “criminal.” Defendant took the weapon from his friend, Moscoso, who was assaulting his (Moscoso’s) wife in an effort to protect her: … [T]he evidence established that defendant’s possession of the weapon […]

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THE PROSECUTOR AND THE JUDGE AGREED DEFENDANT’S ALFORD PLEA WOULD BE PREMISED ON HIS ABILITY TO APPEAL A GRAND-JURY EVIDENCE ISSUE; THE THIRD DEPARTMENT HELD SUCH CONDITIONAL PLEAS ARE GENERALLY NOT ACCEPTED IN NEW YORK; MATTER SENT BACK TO ALLOW DEFENDANT TO MOVE TO WITHDRAW HIS PLEA (THIRD DEPT). ​

The Third Department, sending the matter back for a motion to withdraw the plea (if defendant so chooses), determined County Court’s telling the defendant he could appeal his claim that the grand jury was tainted by inadmissible hearsay was erroneous. Defendant, with the judge’s and prosecutor’s permission, decided to enter an Alford plea based on the […]

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PLAINTIFF CONTRACTOR DID NOT POSSESS THE REQUIRED NYC HOME IMPROVEMENT CONTRACTOR’S LICENSE; THE CONTRACTOR’S BREACH OF CONTRACT ACTION SEEKING PAYMENT FOR THE RENOVATION WORK PLAINTIFF COMPLETED WAS PROPERLY DISMISSED (FIRST DEPT). ​

The First Department, in a full-fledged opinion by Justice Higgitt, determined the plaintiff contractor was required to have a home improvement contractor’s license by the New York City Administrative Code. Therefore plaintiff’s breach of contract, unjust enrichment, account stated and quantum meruit causes action against the owner of the property plaintiff worked on was correctly […]

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DEFENDANT SHOULD NOT HAVE BEEN DENIED ACCESS TO COMPLAINANT’S MENTAL HEALTH RECORDS AND SHOULD NOT HAVE BEEN PREVENTED FROM CROSS-EXAMINING COMPLAINANT ABOUT HER MENTAL HEALTH; CONVICTION REVERSED AND NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing defendant’s conviction in this sex offense trial, determined defendant should not have been denied access to the complainant’s mental  health records and should not been prevented from cross-examining the complainant about her mental health: … County Court erred in denying the defendant any access to the complainant’s mental health records … […]

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​ ALTHOUGH DEFENDANT ENTERED A PLEA OF NOT RESPONSIBLE BY REASON OF MENTAL DISEASE OR DEFECT, THE JUDGE SHOULD NOT HAVE COMMITED DEFENDANT TO SIX MONTHS IN A SECURE FACILITY PURSUANT TO CPL 330.20(6) WITHOUT HOLDING A HEARING (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined defendant, who entered a plea of not responsible by reason of mental disease or defect, should not have been committed to a secure facility pursuant to CPL 330.20(6) based on a finding defendant suffers from a dangerous mental condition or is mentally ill without first holding a hearing: […]

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DEFENDANT DID NOT SUBMIT PROOF DEMONSTRATING WHEN THE AREA OF THE SLIP AND FALL WAS LAST INSPECTED BEFORE THE FALL; THEREFORE DEFENDANT DID NOT DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF THE CONDITION; THE VIDEO SUBMITTED BY THE DEFENDANT WAS NOT AUTHENTICATED SO IT SHOULD NOT HAVE BEEN CONSIDERED BY THE COURT (SECOND DEPT). ​

he Second Department, reversing Supreme Court, determined defendant NYC Transit Authority was not entitled to summary judgment dismissing plaintiff’s slip and fall action. Plaintiff alleged she slipped and fell on a wet substance on the floor of defendant’s bus. The evidence of when the floor was last inspected was insufficient to show a lack of […]

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THE 2020 AMENDMENTS BROADENING THE REACH OF THE ANTI-SLAPP STATUTE DO NOT APPLY RETROACTIVELY; THEREFORE DEFENDANT’S COUNTERCLAIM BASED UPON THE AMENDED STATUTE SHOULD HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s counterclaim under the anti-SLAPP statute should have been dismissed. Plaintiff, an attorney, brought this action for libel and intentional infliction of emotional distress based on letters and emails written by defendant which allegedly were intended to damage plaintiff’s reputation in the legal profession. The counterclaim alleged the […]

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