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Entries by Bruce Freeman

IN A MANDAMUS PROCEEDING WHICH IS TRIGGERED BY A DEMAND BY PETITIONER, AN UNREASONABLE DELAY IN MAKING THE DEMAND WILL RENDER THE PROCEEDING TIME-BARRED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined petitioner’s Article 78 proceeding was time-barred because petitioner unreasonably delayed making the demand which triggered the four-month statute of limitations (laches): “[W]here, as here, the proceeding is in the nature of mandamus to compel, it ‘must be commenced within four months after refusal by respondent, upon demand of […]

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THE OFFICER WHO CONVINCED DEFENDANT TO CONSENT TO THE SEARCH TOLD THE DEFENDANT HE WOULD BE HAPPY TO APPLY FOR A WARRANT BUT DEFENDANT WOULD BE DETAINED UNTIL THE WARRANT WAS PROCURED; BECAUSE THE POLICE DID NOT HAVE PROBABLE CAUSE FOR A SEARCH WARRANT, THE OFFICER’S STATEMENT WAS MISLEADING; DEFENDANT’S CONSENT TO SEARCH WAS NOT VOLUNTARILY GIVEN (FOURTH DEPT).

The Fourth Department, suppressing the drugs found in defendant’s car and defendant’s related statements, determined the consent to search was not voluntarily given. The officer told the defendant he would be happy to apply for a warrant but defendant would be detained until the warrant was obtained. However, the officer told the defendant, if he […]

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THE PETITIONERS (THREE NYS LEGISLATORS AND AN ADVOCACY GROUP) DID NOT HAVE STANDING TO CHALLENGE THE DEPARTMENT OF HEALTH REGULATIONS ALLOWING ISOLATION AND QUARANTINE DURING THE COVID-19 PANDEMIC (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the three New York State legislators (the legislator petitioners) and the advocacy group (the organizational petitioner) challenging the Department of Health regulations allowing isolation and quarantine during the COVID pandemic did not have standing to bring the petition. Legislators have standing where there has been a usurpation of […]

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COUNTY COURT FOUND THAT DEFENDANT’S CONFESSION TO SEXUAL INTERCOURSE WITH THE VICTIM WAS NOT CORROBORATED AND DISMISSED THE RAPE COUNTS; THE THIRD DEPARTMENT EXPLAINED THE CRITERIA FOR CORROBORATION EVIDENCE AND FOUND IT SUFFICIENT TO SUPPORT THE RAPE CHARGES (THIRD DEPT).

The Third Department, reversing County Court, determined there was sufficient evidence to corroborate defendant’s confession to having sexual intercourse with the victim. The rape counts of the indictment, therefore, should not have been dismissed: Where, as here, a defendant has confessed to a crime, he or she “may not be convicted of any offense solely […]

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FATHER’S PETITION FOR MODIFICATION OF CUSTODY BASED PRIMARILY UPON INCREASED TRAVEL TIME BECAUSE OF MOTHER’S MOVE SHOULD NOT HAVE BEEN DISMISSED; THE MAJORITY NOTED MANY REASONING ERRORS AND ORDERED A NEW HEARING IN FRONT OF A DIFFERENT JUDGE; TWO-JUSTICE DISSENT (THIRD DEPT) ​

The Third Department, reversing Family Court, over a two-justice dissent, determined father’s petition for a modification of the custody arrangement based upon mother’s move and the consequent increase in travel times should not have been dismissed. The matter was sent back for a new fact-finding hearing before a different judge: Applying the correct standard at […]

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THERE WAS A QUESTION OF FACT WHETHER THE STORM-IN-PROGRESS DOCTRINE APPLIED IN THIS SIDEWALK SLIP AND FALL CASE; THEREFORE PLAINTIFFS DID NOT NEED TO DEMONSTRATE THE ICE WAS PREEXISTING (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, over a two-justice dissent, determined there was a question of fact whether the storm-in-progress doctrine applied in this slip and fall case.  … [I]n this case a trier of fact should be charged with determining whether there was a lull or ongoing storm in progress that supports the […]

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THE MOTIONS BEFORE THE COURT IN THIS TRAFFIC ACCIDENT CASE DID NOT ADDRESS WHETHER THE EMPLOYER OF THE DRIVER WHO REAR-ENDED PLAINTIFF WAS LIABLE TO PLAINTIFF; THE COURT SHOULD NOT HAVE, SUA SPONTE, SEARCHED THE RECORD AND AWARDED PLAINTIFF SUMMARY JUDGMENT AGAINST THE EMPLOYER OF THE DRIVER (FIRST DEPT).

The First Department, reversing Supreme Court in this traffic-accident case, determined Supreme Court should not have, sua sponte, searched the record to award plaintiff summary judgment. The motion before the court was brought by the owner of the car which rear-ended plaintiff, Piard, against the employer of the driver of Piard’s car, Y & H. […]

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IN A PROCEEDING INTERRUPTED BY COVID THE JUDGE RULED ON FATHER’S PETITION TO RELOCATE WITH THE CHILD AND MOTHER’S CROSS-PETITION FOR SOLE CUSTODY WITHOUT COMPLETING THE HEARING; REVERSED (SECOND DEPT).

The Second Department, reversing Family Court in this custody proceeding, determined the judge should not have ruled on father’s petition to locate with the child to New Jersey and mother’s cross-petition for sole custody without completing the hearing: “Custody determinations . . . require a careful and comprehensive evaluation of the material facts and circumstances […]

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THE JUDGE GRANTED FATHER’S MOTION FOR SANCTIONS (ATTORNEY’S FEES) WITHOUT AFFORDING MOTHER AN OPPORTUNITY TO BE HEARD; THE JUDGE RULED ON FATHER’S MOTION AFTER DECIDING TO GRANT MOTHER’S MOTION FOR RECUSAL; REVERSED (SECOND DEPT). ​

The Second Department, reversing Family Court in this custody proceeding, determined the judge should not have awarded attorneys fees to father as sanctions for mother’s actions without affording mother an opportunity to be heard. In addition, the judge should not have ruled on  father’s motion for sanctions after deciding to grant mother’s motion for recusal: […]

A CHALLENGE TO THE FINAL TAX ASSESSMENT OF REAL PROPERTY BROUGHT BEFORE THE COMPLETION AND FILING OF THE ASSESSMENT MUST BE DISMIISSED AS UNTIMELY (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Duffy, disagreeing with the Third Department, determined that an action challenging a real property tax assessment cannot be brought before the completion and filing of the assessment. Here the action was brought before the filing of the assessment and was therefore properly dismissed as untimely: The […]

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