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Entries by Bruce Freeman

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EXPERT EVIDENCE ABOUT THE EFFECT OF A DRUG MIXED WITH ALCOHOL ON DEFENDANT’S ABILITY TO FORM THE INTENT TO COMMIT MURDER AND ASSAULT SHOULD HAVE BEEN ADMITTED; DEFENDANT SHOULD HAVE BEEN ALLOWED TO LAY A FOUNDATION TO QUALIFY AN EMAIL WHICH INCLUDED HEARSAY AS A BUSINESS RECORD; NEW TRIAL ORDERED.

The Third Department, reversing defendant’s attempted murder and assault convictions, determined expert testimony explaining the effects of a drug taken by the defendant along with alcohol should have been admitted. In addition, an email in which a police officer, who was not at the scene, referred to the defendant’s condition as “highly intoxicated” should not […]

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DEFENDANT WAS NOT GIVEN NOTICE OF SOME OF THE EVIDENCE RELIED ON BY COUNTY COURT FOR THE SORA RISK ASSESSMENT; THE MATTER WAS REMANDED FOR A NEW HEARING (THIRD DEPT).

The Third Department, reversing (modifying) County Court, determined defendant was not given notice of some of the grounds County Court relied upon for an upward departure re: defendant’s SORA risk-level assessment. That constituted a violation of defendant’s right to due process: While … defendant [was] on notice that his persistent sexually-motivated criminal conduct would be relied upon […]

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THE PLAINTIFF’S EXPERT’S ASSERTION THAT THE FAILURE TO DIAGNOSE ATHEROSCLEROTIC CARDIOVASCULAR DISEASE PROXIMATELY CAUSED DECEDENT’S PREMATURE DEATH WAS SUFFICIENT TO RAISE A QUESTION OF FACT ON CAUSATION IN THIS MEDICAL MALPRACTICE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s expert’s affidavit raised a question of fact whether defendants’ failure to diagnose plaintiff’s decedent’s atherosclerotic cardiovascular disease proximately caused decedent’s premature death: … Supreme Court properly determined that the affirmation of the defendants’ expert established, prima facie, that the treatment provided by the defendants was not a […]

PURSUANT TO EXECUTIVE ORDERS RESPONDING TO THE COVID-19 PANDEMIC, THE TIME BETWEEN THE FILING OF A FELONY COMPLAINT AND ARRAIGNMENT ON AN INDICTMENT WAS EXCLUDED FROM THE SPEEDY TRIAL CLOCK; HERE THE DEFENDANT’S MOTION TO DIMSISS SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing County Court, determined the COVID-19 toll specific to CPL 30.30 and 190.80 applied and the People, therefore, did not violate the speedy trial statute: In response to the COVID-19 pandemic, on December 30, 2020, former Governor Andrew Cuomo issued Executive Order No. 202.87, which provided that “[s]ection 30.30 and [s]ection 190.80 […]

PLAINTIFF WAS STRUCK BY DEFENDANT’S VEHICLE; DEFENDANT DRIVER IS EXPECTED TO SEE WHAT SHOULD BE SEEN; WHETHER PLAINTIFF WAS CONTRIBUTORILY NEGLIGENT SHOULD NOT HAVE BEEN CONSIDERED; PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment in this vehicle-pedestrian accident case should have been granted. Whether plaintiff was contributorily negligent should not have been considered: … [P]laintiff, who was wearing a bright green safety vest, was standing at or near the sideview mirror of the cab while the cab […]

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A COMPLAINT THAT IS NEVER SERVED DOES NOT CONSTITUTE AN “ACTION;” HERE A PRIOR COMPLAINT WAS NEVER SERVED; THEREFORE THE INSTANT COMPLAINT SHOULD NOT HAVE BEEN DISMISSED ON THE GROUND THERE WAS ANOTHER IDENTICAL ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the complaint in this traffic accident case should not have been dismissed because it was identical to a prior action. The first complaint was never served so there was no prior action: CPLR 3211(a)(4) provides that “[a] party may move for judgment dismissing one or more causes of […]

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THE EXECUTOR WAS ENTITLED TO A HEARING ON HIS OBJECTIONS TO THE FEES AND DISBURSEMENTS AWARDED THE GUARDIAN OF DECEDENT’S PERSON AND PROPERTY; THE EXECUTOR WAS ENTITLED TO DISCOVERY PURSUANT TO CPLR 408 IN THE SPECIAL PROCEEDING (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the executor of decedent’s estate (Oppedisano) was entitled to a hearing and discovery with respect to the fess and disbursements awarded to the guardian of decedent’s person and property: … [T]here are disputed issues of fact as to the accuracy and completeness of the guardian’s final account, and […]

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PLAINTIFF’S COUNSEL SHOULD NOT HAVE BEEN DISQUALIFIED PURSUANT TO THE ADVOCATE-WITNESS RULE, CRITERIA EXPLAINED (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, determined plaintiff’s (Gamez’s) counsel should not have been disqualified pursuant to the advocate-witness rule: “[T]he disqualification of an attorney is a matter which rests within the sound discretion of the court. A party’s entitlement to be represented in ongoing litigation by counsel of his or her own choosing […]

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A NYC REGULATION REQUIRES FOR-HIRE VEHICLES TO BE WITHIN 12 INCHES OF THE CURB WHEN PICKING UP OR DISCHARGING PASSENGERS; THE DRIVER STOPPED TWO FEET FROM THE CURB AND PLAINTIFF FELL TRYING TO GET INTO THE VEHICLE; THE NEGLIGENCE ACTION AGAINST THE UBER DRIVER SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the negligence action against the driver and owner of an UBER vehicle should not have been dismissed. The driver stopped two feet from the curb and plaintiff tripped trying to get into the vehicle. A NYC regulation requires vehicles-for-hire to be within 12 inches of the curb: […]

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PLAINTIFF BANK DID NOT START PROCEEDINGS TO ENTER A DEFAULT JUDGMENT WITHIN ONE YEAR AND DID NOT PRESENT AN ADEQUATE EXCUSE FOR THE DELAY; THE MOTION TO DISIMISS SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank in this foreclosure action did not seek a default judgment within one year and did not offer a reasonable excuse for the delay. Therefore there was no need for the court to consider whether plaintiff had a meritorious cause of action. The complaint should have been […]

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