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Entries by Bruce Freeman

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IN THIS MEDICAL MALPRACTICE ACTION, PLAINTIFF’S EXPERT’S AFFIDAVIT DID NOT DEMONSTRATE FAMILIARITY WITH THE APPLICABLE STANDARD OF CARE, WAS SPECULATIVE AND CONCLUSORY AND DID NOT ADDRESS ALL THE ASSERTIONS MADE BY DEFENDANTS’ EXPERTS; THE DEFENDANTS WERE ENTITLED TO SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the affidavit from plaintiff’s expert did not demonstrate familiarity with the applicable standard of care, was speculative and conclusory, and did not address all the allegations raised by defendants’ experts: … [T]he plaintiff failed to raise a triable issue of fact by submitting a redacted physician’s affidavit. “While […]

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EVEN THOUGH THE DEBTOR TRANSFERRED THE PROPERTY TO THE NON-DEBTOR CODEFENDANT YEARS BEFORE FILING FOR BANKRUPTCY, THE BANKRUPTCY TOLLED THE FORECLOSURE STATUTE OF LIMITATIONS FOR THE ACTION AGAINST THE DEBTOR; THE TOLL DID NOT APPLY TO THE ACTION AGAINST THE NON-DEBTOR WHICH NEVER FILED FOR BANKRUPTCY (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Connolly, reversing (modifying) Supreme Court, determined the foreclosure statute of limitations was tolled by the bankruptcy stay for the action against the defendant who filed for bankruptcy, but not for the defendant to which the property was transferred (who did not file for bankruptcy): This appeal […]

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THE PROPOSED AMENDMENT TO THE NOTICE OF CLAIM DID NOT PRESENT A NEW THEORY OF NEGLIGENCE; THE MOTION TO AMEND SHOULD NOT HAVE BEEN DENIED (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s motion to amend the notice of claim should have been granted. The amendments merely fleshed out the theory of negligence described in the original notice and did not present a new theory of liability: The purpose of prohibiting new theories of liability in notices of claim is […]

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FAMILY COURT DID NOT MAKE THE REQUIRED “SEARCHING INQUIRY” RE: WHETHER FATHER WAS KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY WAIVING HIS RIGHT TO COUNSEL (FIRST DEPT). ​

The First Department, reversing Family Court, held the judge did not make the required “searching inquiry” to determine whether father was knowingly, intelligently and voluntarily waiving his right to counsel. Father had made a motion to vacate a final order of protection: … [T]he court failed to conduct the requisite “searching inquiry” to ensure that […]

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DEFENDANT, IN THE PLEA COLLOQUY, SAID SHE ACTED IN SELF DEFENSE; AT THAT POINT THE JUDGE SHOULD HAVE MADE SURE SHE WAS AWARE SHE WAS WAIVING THE JUSTIFICATION DEFENSE (FIRST DEPT).

The First Department, vacating defendant’s guilty plea, determined the judge, based on the plea colloquy, should have questioned the defendant about her waiver of her right to present a justification defense: The trial court failed to determine defendant’s understanding and waiver of her right to present a defense of justification after defendant stated, during the plea […]

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THE PLEA ALLOCUTION DID NOT DEMONSTRATE DEFENDANT MADE AN INFORMED DECISION TO WAIVE A VIABLE INSANITY DEFENSE; THE FIRST DEPARTMENT VACATED THE PLEA AND DISMISSED THE INDICTMENT; DEFENDANT WAS RETURNED TO AN ASSISTED LIVING FACILITY UNDER A CIVIL GUARDIANSHIP ORDER (FIRST DEPT).

The First Department, vacating defendant’s plea and dismissing the indictment, determined defendant’s plea was invalid because it was not clear he made an informed decision to waive a viable insanity defense: As the People concede, the circumstances of this unique case warrant vacating the plea and dismissing the indictment. The plea allocution did not address […]

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CASE REMITTED FOR A DETERMINATION OF THE CONSTITUTIONALITY OF THE GUARANTY LAW WHICH WAS FOUND TO HAVE BARRED PLAINTIFF’S CLAIM FOR CERTAIN AMOUNTS (FIRST DEPT).

The First Department sent this case back for a determination whether guarantees at issue are constitutional: In view of the recent decision in Melendez v City of New York (2023 WL 2746183, 2023 US Dist LEXIS 57050 [SD NY, Mar. 31, 2023, No. 20-CV-5301 (RA)] finding the guaranty law unconstitutional, we remand the constitutional question […]

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THE MAJORITY CONCLUDED THE ARGUMENT THAT DEFENSE COUNSEL SHOULD HAVE BEEN ALLOWED TO READ THE INDICTMENT TO THE JURY TO SHOW THE DISCREPANCY BETWEEN THE ALLEGATIONS OF COERCION IN THE INDICTMENT AND THE PROOF AT TRIAL WAS RENDERED MOOT BY THE DISMISSAL OF THE COERCION COUNT; THE DISSENT ARGUED THE PROHIBITION DEPRIVED DEFENDANT OF THE RIGHT TO PUT ON A DEFENSE (THIRD DEPT).

The Third Department, over a partial dissent, determined defense counsel was properly prohibited from reading the indictment to the jury. Defense counsel sought to show that the allegations of coercion in the indictment differed from the proof presented by the People. Both the majority and the dissenter agreed that the proof of coercion was legally […]

ALTHOUGH THE PARKING/STORAGE AREA WHERE CLAIMANT WAS INJURED WAS NOT ON THE CONSTRUCTION SITE, THERE WAS A SUFFICIENT NEXUS BETWEEN THE PARKING/STORAGE AREA AND THE CONSTRUCTION SITE SUCH THAT CLAIMANT’S PLACE OF EMPLOYMENT EXTENDED TO THE PARKING/STORAGE AREA (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined the parking area where claimant was injured had a “sufficient nexus” with the construction site. Therefore claimant’s injury, incurred pulling the gate to the parking/storage area, arose from petitioner’s employment: Although the parking area where claimant was injured was not part of the construction site, and […]

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PLAINTIFF’S EMPLOYER, VERIZON, THREATENED LEGAL ACTION BASED UPON A NON-COMPETE AGREEMENT SIGNED BY PLAINTIFF IF PLAINTIFF RESIGNED TO WORK FOR WARNERMEDIA; PLAINTIFF’S TORTIOUS-INTERFERENCE-WITH-PROSPECTIVE-BUSINESS-RELATIONS CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant-employer (Verizon) was entitled to summary judgment dismissing the tortious-interference-with-prospective-business-relations cause of action. Plaintiff signed a non-compete agreement. When Verizon learned of plaintiff’s plan to resign and work for WarnerMedia Verizon warned plaintiff that resigning would lead to legal action: Although plaintiff contends that Verizon wrongfully threatened litigation […]

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