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Entries by Bruce Freeman

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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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THE OWNER OF A COOPERATIVE BUILDING WAS PROPERLY FOUND LIABLE FOR FAILING TO REMEDIATE LEAD PAINT IN A SHAREHOLDER’S APARTMENT WHICH WAS SUBLET TO PLAINTIFF AND HER YOUNG DAUGHTER (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Oing, determined the owner of the building (Windsor) in which a cooperative shareholder, Sersch, sublet her cooperative apartment to plaintiff, had constructive knowledge plaintiff’s young daughter was living with plaintiff. Plaintiff’s daughter was diagnosed with lead poisoning and peeling lead paint was found in the apartment. Summary […]

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PLAINTIFF DID NOT CITE A VIOLATION OF ANY INDUSTRIAL CODE PROVISION IN THE COMPLAINT OR BILL OF PARTICULARS, WHICH WOULD ENTITLE DEFENDANT TO SUMMARY JUDGMENT ON THE LABOR LAW 241(6) CAUSE OF ACTION; HOWEVER PLAINTIFF SHOULD HAVE BEEN ALLOWED TO AMEND THE BILL OF PARTICULARS TO ADD A CODE VIOLATION (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined plaintiff should have been allowed to amend the bill of particulars to allege a violation of an Industrial Code provision describing the construction of platforms. Plaintiff was walking on a rebar mat when he fell. The rebar mat could be considered to be a “platform” which, under […]

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DEFENDANT CANNOT APPEAL THE DENIAL OF HIS MOTION TO DISMISS THE SORA RISK-LEVEL PROCEEDING; HE MUST FIRST BE ADJUDICATED BY THE SORA COURT AND MAY SUBSEQUENTLY APPEAL REQUESTING AN ANNULMENT (FIRST DEPT). ​

The First Department, in full-fledged opinion by Judge Pitt-Burke, determined the defendant could not appeal an interlocutory order which denied his motion to dismiss the SORA proceeding. Defendant had been convicted of a federal offense and argued the Penal Law did not criminalize the use of morphed images which did not depict actual sexual conduct […]

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DEFENDANT WAS ENTITLED TO A HEARING ON HIS MOTION TO VACATE HIS GUILTY PLEA; DEFENDANT WAS TOLD BY DEFENSE COUNSEL THAT DEPORTATION BASED ON THE PLEA WAS POSSIBLE, BUT HE WAS NOT TOLD IT WAS MANDATORY; DEFENDANT DEMONSTRATED HE MAY HAVE DECIDED TO GO TO TRIAL IF HE HAD BEEN AWARE OF THE MANDATORY DEPORTATION (THIRD DEPT).

The Third Department, reversing County Court, determined defendant was entitled to a hearing on his motion to vacate his guilty plea. Although the court and defense counsel warned defendant he may be subject to deportation based upon his guilty plea, defendant was not told by counsel that deportation would be mandatory. Defendant was entitled to […]

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PETITIONERS, RESIDENTIAL HEALTH CARE FACILITIES, SOUGHT A WRIT OF MANDAMUS PURSUANT TO CPLR ARTICLE 78 COMPELLING THE NYS DEPARTMENT OF HEALTH TO HEAR RATE APPEALS WHICH CHALLENGE MEDICAID RATE PAYMENTS; BECAUSE THE REQUESTED RELIEF REQUIRED THE EXERCISE OF DISCRETION ON THE PART OF THE DEPARTMENT OF HEALTH, MANDAMUS RELIEF WAS NOT AVAILABLE (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Reynolds Fitzgerald, determined that petitioners, 23 residential health care facilities which participate in the federal and state Medicaid programs administered by the NYS Department of Health, did not meet the criteria for mandamus relief pursuant to CPLR Article 78. Petitioner sought to compel the respondent to […]

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