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Entries by Bruce Freeman

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LYING TO AN INVESTIGATOR WHO RECORDS THE LIE IN A REPORT CANNOT BE THE BASIS OF A “FALSIFYING A BUSINESS RECORD” CHARGE; ALTHOUGH THE ISSUE WAS NOT PRESERVED THE APPEAL WAS CONSIDERED IN THE INTEREST OF JUSTICE (FOURTH DEPT). ​

The Fourth Department, reversing defendant’s conviction after considering the unpreserved issue in the interest of justice, determined the People did not present legally sufficient evidence of the “falsifying a business record” charge. The People alleged defendant lied to the sheriff who interviewed him resulting in a false entry in the sheriff’s report. The report itself […]

IN ORDER FOR THE ARREST IN CORTLAND COUNTY ON A JEFFERSON COUNTY WARRANT TO BE VALID THE WARRANT MUST BE ENDORSED BY A JUDGE IN CORTLAND COUNTY BEFORE THE ARREST; HERE THE WARRANT WAS ENDORSED AFTER THE ARREST (FOURTH DEPT).

The Fourth Department, reversing County Court, determined law enforcement in Cortland County did not have the authority to stop defendant’s vehicle and “detain” him on a Jefferson County arrest warrant which had not yet been endorsed by a town justice in Cortland County. To constitute a valid arrest, the warrant must have been endorsed in […]

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A DEFENDANT WHO MOVES TO VACATE A DEFAULT JUDGMENT FOR LACK OF PERSONAL JURISDICTION DOES NOT NEED TO DEMONSTRATE A REASONABLE EXCUSE FOR THE DEFAULT (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the motion to vacate a default judgment for lack of personal jurisdiction should not have been treated as a motion to vacate based on an excusable default. The defendant raised a question of fact about whether he was properly served by demonstrating the address at issue did not […]

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PETITIONER SEX OFFENDER WAS ENTITLED TO A HEARING WITH LIVE WITNESSES AT WHICH HE MAY TESTIFY IN THE ANNUAL REVIEW OF HIS CONFINEMENT UNDER THE MENTAL HYGIENE LAW; SUPREME COURT HAD ORDERED A HEARING CONDUCTED BY WRITTEN SUBMISSIONS (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined petitioner-sex-offender was entitled to a live hearing on his petition for discharge from confinement pursuant to the Menta Hygiene Law. Supreme Court had ordered that the hearing be conducted by written submissions: … Mental Hygiene Law § 10.09 (d) requires the court to “hold an evidentiary hearing as […]

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THE MOTION TO BIFURCATE THE LIABILITY AND DAMAGES ASPECTS OF THE TRIAL IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED; STATEMENTS MADE TO HEALTHCARE PERSONNEL AND MEDICAL RECORDS WERE RELEVANT TO LIABILITY (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the defendant’s motion to bifurcate the trial (liability versus damages) in this slip and fall case should not have been granted. Plaintiff made statements to medical personnel which were relevant to liability: Plaintiff commenced this action seeking damages for injuries that he allegedly sustained when he fell from […]

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VIDEO SURVEILLANCE SHOWING DEFENDANT ENTERING THE MALL WITH EMPTY BAGS FROM A STORE THAT WAS NOT IN THE MALL AND LEAVING WITH ITEMS IN THE BAGS DID NOT AMOUNT TO “REASONABLE SUSPICION” JUSTIFYING THE VEHICLE STOP; TWO-JUSTICE DISSENT (FOURTH DEPT).

The Fourth Department, reversing County Court, over a two-justice dissent, determined the sheriffs did not have the requisite “reasonable suspicion” to justify the stop of defendant’s vehicle in a mall parking lot. A deputy had seen a surveillance video showing defendant going into the mall with empty bags from a store which was not in […]

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HERE THE BENEFICIARY OF THE WILL WAS IN A CONFIDENTIAL RELATIONSHIP WITH THE DECEDENT AND THE WILL WAS PREPARED BY AN ATTORNEY ASSOCIATED WITH THE BENEFICIARY; THE UNDUE INFLUENCE OBJECTIONS SHOULD NOT HAVE BEEN DISMISSED (FOURTH DEPT).

The Fourth Department, reversing (modifying) Surrogate’s Court, determined the objections to probate of the will alleging undue influence should not have been dismissed. Here the will was prepared by an attorney for a beneficiary of the will: “Generally, [t]he burden of proving undue influence . . . rests with the party asserting its existence . […]

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RATHER THAN ADDRESS WHETHER THE REGULATION REQUIRING HOSPITAL PERSONNEL TO BE VACCINATED AGAINST COVID WAS VALID AND ENFORCEABLE, THE FOURTH DEPARTMENT REFUSED TO APPLY THE EXCEPTION TO THE MOOTNESS DOCTRINE TO CONSIDER THE MERITS OF THE APPEAL, FLATLY STATING THE PANDEMIC IS OVER AND IS UNLIKELY TO OCCUR AGAIN (FOURTH DEPT).

The Fourth Department determined the appeal of Supreme Court’s ruling that the regulation requiring hospitals to mandate COVID vaccines for certain personnel exceeded the state’s authority has been rendered moot. The state has repealed the regulation. The exception to the mootness doctrine did not apply: “[A]lthough the issue of the lawfulness of the [regulation] implemented […]

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DEFENDANT PROPERTY OWNERS PRESENTED NO EVIDENCE TO DEMONSTRATE WHEN THE STEPS WHERE PLAINTIFF SLIPPED AND FELL WERE LAST INSPECTED OR CLEANED; THEREFORE DEFENDANTS WERE NOT ENTITLED TO SUMMARY JUDGMENT (FIRST DEPT). ​

​The First Department, reversing Supreme Court, determined there was a question of fact whether defendants created or had notice of the slippery condition of the steps alleged to have caused plaintiff’s slip and fall. Defendants presented no evidence about when the steps were last cleaned or inspected: Defendant Bruhilde Koenig testified during her deposition that […]

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DEFENDANT WAS NOT GIVEN AN OPPORTUNITY TO RESPOND TO A RISK-ASSESSMENT THEORY RAISED FOR THE FIRST TIME AT THE HEARING; MATTER REMANDED (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant should not have been assessed risk-factor points based on a theory which defendant was unable to respond to because it was raised for the first time at the SORA risk-assessment hearing. The matter was remanded: … [T]he court should have found that the People acted improperly in […]

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