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Entries by Bruce Freeman

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DEFENDANT WAS MISNAMED IN THE COMPLAINT BUT WAS TIMELY SERVED; THE AMENDED COMPLAINT WITH THE CORRECT NAME, ALTHOUGH SERVED AFTER THE STATUTE OF LIMITATIONS HAD RUN, SHOULD NOT HAVE BEEN DISMISSED; THE AMENDED COMPLAINT SHOULD HAVE BEEN DEEMED TIMELY SERVED AND FILED NUNC PRO TUNC (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the medical malpractice complaint should not have been dismissed. The original complaint misnamed defendant Mark Gennaro as Michael Gennaro. The amended complaint with the correct name was served after the statute of limitations had run. Pursuant to CPLR 305(c) the amended complaint should have been deemed timely served […]

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PLAINTIFF COULD NOT IDENTIFY THE CAUSE OF HIS STAIRWAY FALL BUT HE TESTIFIED HE REACHED FOR A HANDRAIL AND THERE WAS NONE; DEFENDANTS DID NOT PRESENT ANY EVIDENCE ON THE PRESENCE OR NEED FOR A HANDRAIL; THERE CAN BE MORE THAN ONE PROXIMATE CAUSE OF A FALL; DEFENDANTS WERE NOT ENTITLED TO SUMMARY JUDGMENT (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined defendants were not entitled to summary judgment in this stairway slip and fall case. Although plaintiff could not identify the initial cause of his fall, plaintiff, in his deposition, testified he reached for a handrail, but there was none. Defendants did not present evidence there was a handrail or […]

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RESIDENTS OF A NURSING HOME ALLEGING INADEQUATE STAFFING, UNPALATABLE FOOD, MEDICATION DELAYS, INJURIES DUE TO INSUFFICIENT SUPERVISION, AND ALLOWING RESIDENTS TO SIT IN THEIR OWN WASTE, WERE PROPERY CERTIFIED AS A CLASS IN THIS PUBLIC HEALTH LAW 2801-D ACTION (SECOND DEPT).

The Second Department, in an extensive full-fledged opinion by Justice Ford, distinguishing a prior ruling involving similar issues, determined Supreme Court properly certified nursing-home patients at defendant’s facility as a class in this suit alleging substandard care: The issue presented on this appeal is whether the Supreme Court properly granted the plaintiffs’ motion for class […]

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ON APPEAL DEFENDANT CHALLENGED THE VOLUNTARINESS OF HIS GUILTY PLEA BUT THE PLEA MINUTES WERE NOT AVAILABLE; DEFENDANT DID NOT SHOW THAT RECONSTRUCTION OF THE 2013 PLEA PROCEEDING WAS IMPOSSIBLE; THEREFORE THE MATTER WAS REMITTED FOR A RECONSTRUCTION HEARING (SECOND DEPT),

The Third Department determined a reconstruction hearing, rather than reversal of defendant’s conviction by guilty plea in 2013, was required before the appellate court could rule on the voluntariness of the plea. The transcript of the plea proceeding was not available: Defendant also challenges the voluntariness of his guilty plea, which he claims was defective […]

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THE CRITERIA FOR “A CONTINUING COURSE OF SEXUAL CONTACT” WERE NOT MET; DEFENDANT’S SORA RISK-LEVEL REDUCED TO LEVEL ONE (SECOND DEPT).

The Second Department, reducing defendant’s SORA risk-level assessment to level one, determined the People did not demonstrate “a continuing course of sexual contact:“ The Guidelines provide, in part, regarding risk factor 4, that “an offender has engaged in a continuing course of sexual contact when he [or she] engages in either (i) two or more acts […]

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SUPREME COURT SHOULD NOT HAVE BASED AN UPWARD DEPARTURE IN THIS SORA RISK-ASSESSMENT PROCEEDING ON GROUNDS NOT RAISED BY THE PEOPLE WHERE THE DEFENDANT WAS NOT GIVEN THE OPPORTUNITY TO CONTEST THOSE GROUNDS (SECOND DEPT).

The Second Department, reversing the SORA risk level assessment, determined defendant should have been given the opportunity to contest the grounds for an upward department not raised by the People: A “SORA court deprive[s a] defendant of those basic procedural guarantees when it upwardly depart[s] from the presumptive risk level without affording [the] defendant notice […]

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THE PEOPLE WERE ALLOWED TO PRESENT EXPERT TESTIMONY ON CHILD PSYCHOLOGY AND CHILD ABUSE; DEFENDANT WAS DEPRIVED OF HIS RIGHT TO PRESENT A DEFENSE WHEN THE REQUEST TO PRESENT A REBUTTAL WITNESS WAS DENIED (SECOND DEPT). ​

The Second Department, reversing defendant’s conviction and ordering a new trial, determined defendant should have been allowed to present a witness to rebut the People’s expert testimony on child psychology and child abuse. Failure to allow the rebuttal witness deprived defendant of his right to a fair trial: … Supreme Court did not err in […]

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THE DETECTIVE’S TESTIMONY, WITHOUT EVIDENCE FROM THE CONFIDENTIAL INFORMANT WHO MADE THE DRUG PURCHASES, WAS NOT ENOUGH TO DEMONSTRATE PROBABLE CAUSE FOR THE SEARCH WARRANT; MATTER REMITTED FOR A DARDEN HEARING (SECOND DEPT).

The Second Department, reversing Supreme Court, held a Darden hearing was required to determine whether there was probable cause to justify the issuance of a search warrant. The testimony of the defective alone, without the evidence provided by the confidential informant (CI), did not demonstrate probable cause. Therefore the the matter was remitted and the […]

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PURSUANT TO THE MANDATORY VICTIMS RESTITUTION ACT (MVRA), A LIEN BASED UPON A RESTITUTION ORDER IN A CRIMINAL CASE CAN BE ENFORCED BY THE PRIVATE CRIME VICTIM (SECOND DEPT).

The Second Department, reversing Supreme Court, in a comprehensive full-fledged opinion by Justice Christopher, determined that a lien based on a restitution order pursuant to the Mandatory Victims Restitution Act (MVRA) can be enforced by the crime victim. Here an insurance company (National Union), which presumably paid the restitution to the crime victim, was substituted […]

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THE AVAILABILTY OF GOVERNMENT RECORDS ON A PUBLIC WEBSITE DOES NOT SATISFY A FOIL REQUEST; HERE THERE WERE QUESTIONS OF FACT WHETHER THE VILLAGE SHOULD HAVE WORKED WITH THE PETITIONER TO IDENTIFY THE REQUESTED DOCUMENTS (SECOND DEPT).

The Second Department, reversing Supreme Court, in a comprehensive full-fledged opinion by Justice Iannacci, determined the article 78 petition seeking to compel the village to release documents about recusals and conflict-of-interests disclosures by village officials should not have been dismissed. The availability of government records on a public website was deemed insufficient to satisfy a […]

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