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Entries by Bruce Freeman

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IN A SLIP AND FALL CASE, EVIDENCE OF GENERAL CLEANING AND INSPECTION PRACTICES DOES NOT PROVE A LACK OF CONSTRUCTIVE NOTICE OF THE CONDITION; DEFENDANT MUST PROVE THE AREA WAS CLEANED OR INSPECTED CLOSE IN TIME TO THE FALL (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the defendant City of New York did not demonstrate when the area where plaintiff slipped and fell was last cleaned or inspected. Therefore the city did not demonstrate a lack of constructive notice of the dangerous condition: … [T]he defendants failed to establish … that they did not […]

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PURSUANT TO THE “MINISTERIAL EXCEPTION,” THE HOSTILE WORK ENVIRONMENT COMPLAINT BY A PRIEST AGAINST THE DIOCESE OF BUFFALO WAS DISMISSED (FOURTH DEPT).

The Fourth Department, determined the “ministerial exception” to employment discrimination applied to petitioner’s complaint against his former employer, the Diocese of Buffalo. Petitioner, a priest serving as pastor of a church, alleged he was subjected to  a  “hostile work environment:” Here, SDHR [New York State Division of Human Rights] determined that it lacked jurisdiction over […]

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RESPONDENT JUVENILE WAS NOT INFORMED THE FACT FINDING HEARING IN THIS JUVENILE DELINQUENCY PROCEEDING WOULD GO FORWARD IN HIS ABSENCE (THE PARKER WARNING); THEREFORE RESPONDENT DID NOT WAIVE THE RIGHT TO BE PRESENT AND THE ADJUDICATION WAS REVERSED BECAUSE OF HIS ABSENCE (FOURTH DEPT). ​

​The Fourth Department, reversing Family Court in this juvenile delinquency proceeding, determined that the respondent juvenile was not informed that the fact finding hearing would proceed in his absence. Therefore he did not not waive his right to be present at the hearing: Respondent contends that the court violated his constitutional and statutory right to […]

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THE FOR CAUSE CHALLENGES TO TWO JURORS WHO SAID THEY WOULD TEND TO BELIEVE THE TESTIMONY OF POLICE OFFICERS SHOULD HAVE BEEN GRANTED; NEW TRIAL ORDERED (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction and ordering a new trial, determined that two jurors who stated they would tend to believe the testimony of police officers should have been excused for cause: The first prospective juror stated in response to a question concerning police officers that she “was raised to respect them” and that, […]

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DEFENDANT SCHOOL SUPERINTENDENT’S DISCUSSION OF PLAINTIFF CROSS-COUNTY COACH’S TERMINATION WITH STUDENTS WAS ABSOLUTELY PRIVILEGED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the defendant school superintendent’s (Brantner’s) statements to students about plaintiff cross-country coach (who was terminated) were absolutely privileged: “The absolute privilege defense affords complete immunity from liability for defamation to an official [who] is a principal executive of State or local government . . . with respect to […]

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IN THIS INTERSECTION TRAFFIC ACCIDENT CASE, ALTHOUGH THE STATE DEMONSTRATED THE INTERSECTION WAS SAFE WHEN CONSTRUCTED, CLAIMANT RAISED A QUESTION OF FACT WHETHER INCREASED TRAFFIC RENDERED THE INTERSECTION UNSAFE AND WHETHER THE STATE WAS AWARE OF THE DANGER (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined claimant’s cause of action alleging the intersection where claimant was injured in a traffic accident was dangerous should not have been dismissed. Although the state demonstrated the intersection was not dangerous when constructed, claimant raised a question of fact whether increased traffic rendered the intersection dangerous and […]

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DEFENDANT CHALLENGED THE VALIDITY OF THE PAROLE WARRANT WHICH WAS THE BASIS OF THE ENTRY INTO HIS HOME (THE PAYTON ISSUE); THE JUDGE SHOULD HAVE HELD A HEARING TO DETERMINE THE VALIDITY OF THE PAROLE WARRANT (FOURTH DEPT).

The Fourth Department, remitting the matter for a hearing, determined the judge should not have found the police entry into defendant’s residence (the Payton issue) was justified by the parole warrant without a hearing to determine validity of the parole warrant: ” … A parole violation warrant by itself justifies the entry of the residence […]

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THE JUDGE SHOULD HAVE INQUIRED INTO DEFENDANT’S ALLEGATION HIS ASSIGNED COUNSEL WAS BEING PAID BY HIS FAMILY; NEW TRIAL ORDERED (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction and ordering a new trial, determined the judge should have, but did not, conduct an inquiry into defendant’s allegation his assigned counsel was being paid by his family: … Supreme Court violated his right to counsel when it failed to conduct a sufficient inquiry into defendant’s complaint that his […]

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THE COMPLAINT STATED A CAUSE OF ACTION FOR A VIOLATION OF THE EXECUTIVE LAW WHICH PROHIBITS DISCRIMINATION BY LANDLORDS AGAINST POTENTIAL TENANTS BASED UPON SOURCE OF INCOME; ALTHOUGH THE ISSUE WAS NOT RAISED BELOW IT PRESENTED A QUESTION OF LAW REVIEWABLE ON APPEAL (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court, determined the complaint stated a cause of action for a violation of the Executive Law prohibiting discrimination in renting an apartment based upon source of income. Although the issue was raised for the first time on appeal, the issue presented a question of law which could not have been […]

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THE PEOPLE DID NOT DEMONSTRATE THE DEFENDANT VIOLATED THE VEHICLE AND TRAFFIC LAW BY WALKING IN THE MIDDLE OF THE STREET AT THE TIME OF THE STREET STOP; THEREFORE THE PEOPLE DID NOT DEMONSTRATE THE LEGALITY OF THE POLICE CONDUCT AND THE SUPPRESSION MOTION SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

​The Fourth Department, vacating defendant’s guilty plea and dismissing the indictment, determined the People did not demonstrate the legality of the street stop at the suppression hearing. The police had a warrant to search defendant’s apartment and anyone in it. Before the warrant was executed, the defendant left the apartment and the SWAT team stopped […]

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