You are here: / Bruce Freeman

Entries by Bruce Freeman

,

PLAINTIFF’S EXPERT AFFIDAVIT IN THIS MEDICAL MALPRACTICE CASE WAS NOT CONCLUSORY OR SPECULATIVE AND RAISED A QUESTION OF FACT SUFFICIENT TO DEFEAT DEFENDANTS’ SUMMARY JUDGMENT MOTION (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the plaintiff’s expert evidence in this medical malpractice case was not conclusory or speculative and was sufficient to raise a question of fact. The decision is fact-specific and far too detailed to fairly summarize here: … [T]he internist [plaintiff’s expert] specifically opined that earlier intubation …  would have […]

, ,

THE NEW YORK STATE CONSTITUTION REQUIRES THAT THE INDEPENDENT REDISTRICTING COMMISSION SUBMIT A SECOND VOTING-DISTRICT REDISTRICTING PLAN AFTER THE REJECTION OF THE FIRST (THIRD DEPT).

The Third Department, reversing Supreme Court, in a full-fledged opinion by Justice Garry, over a two-justice dissent, determined that the Independent Redistricting Commission (IRC) was required by statute to submit a second voting-district redistricting plan after the rejection of the first. The opinion provides a detailed analysis of the constitutional, legislative and administrative measures taken […]

, ,

AFTER DECLARING A MISTRIAL, THE JUDGE DID NOT DISMISS THE INDICTMENT OR AUTHORIZE A NEW INDICTMENT; THE SUPERSEDING INDICTMENT WAS THEREFORE A NULLITY; BECAUSE THE DEFENDANT WAS CONVICTED OF TWO COUNTS IN THE SUPERSEDING INDICTMENT WHICH WERE IN THE ORIGINAL INDICTMENT (WHICH WAS STILL VALID) THOSE CONVICTIONS WERE ALLOWED TO STAND; THE CONVICTION ON THE COUNT WHICH WAS NOT IN THE ORIGINAL INDICTMENT WAS REVERSED; DOUBLE JEOPARDY DOES NOT ATTACH AFTER A MISTRIAL (THIRD DEPT).

​The Third Department, reversing defendant’s conviction on one of three counts, determined the superseding indictment which came down after a mistrial on the original indictment was a nullity because the trial judge did not dismiss the original indictment or authorize the People to re-present a new indictment. The issue was not preserved and the Third […]

, , , ,

PLAINTIFF, WORKING FOR A SUBSIDIARY OF VERIZON, WAS INJURED LAYING A CABLE UNDER A CITY STREET; THE MAJORITY HELD THERE WERE QUESTIONS OF FACT WHETHER A FRANCHISE AGREEMENT BETWEEN THE CITY AND VERIZON AND/OR THE ISSUANCE OF A CITY PERMIT RENDERED THE CITY A PROPER DEFENDANT; A TWO-JUSTICE DISSENT DISAGREED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Mendez, over a two-justice dissent, determined the City was not entitled to summary judgment in this Labor Law case. Plaintiff was working for a subsidiary of Verizon (Empire City) laying a conduit in a trench in the street when a backhoe pushed a metal plate onto […]

AN UNJUST ENRICHMENT CAUSE OF ACTION IS NOT AVAILABLE WHERE A CONTRACT COVERS THE RELEVANT ISSUE, EVEN IF THE DEFENDANTS ARE NONSIGNATORIES; UNJUST ENRICHMENT IS NOT A “CATCH ALL” CAUSE OF ACTION, CRITERIA EXPLAINED (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined the existence of a contract covering the relevant issue precluded the unjust enrichment cause of action, even though defendants were not signatories to the contract: “The existence of a valid and enforceable written contract governing a particular subject matter ordinarily precludes recovery in quasi contract for events […]

,

A TEACHER MAY NOT ACCUMULATE CREDIT TOWARD TENURE IN ONE SCHOOL DISTRICT FOR WORK AS A SUBSTITUTE TEACHER IN ANOTHER DISTRICT (SECOND DEPT). ​

The Second Department, in a full-fledged opinion by Justice Ford, determined a teacher may not accumulate credit towards tenure from working as a substitute teacher in a different district: The narrow issue presented on this appeal, apparently one of first impression for an appellate court in this State, is whether a teacher may accumulate credit […]

,

THE NONHEARSAY ALLEGATIONS IN THE JUVENILE DELINQUENCY PETITION DID NOT SUFFICIENTLY DEMONSTRATE THE “PHYSICAL INJURY” ELEMENT OF ASSAULT THIRD RENDERING THE PETITION JURISDICTIONALLY DEFECTIVE (SECOND DEPT). ​

The Second Department, reversing (modifying) Family Court in this juvenile delinquency proceeding, determined the factual part of the petition alleging an act which would constitute assault third if done by an adult was jurisdictionally defective because it did not set forth every element of the offense. Specifically the petition did not sufficiently allege “physical injury:” […]

, ,

A STORM DRAIN ALLEGEDLY CAUSED FLOODING ON PLAINTIFFS’ PROPERTY; THE NEGLIGENT DESIGN CAUSE OF ACTION AGAINST THE VILLAGE ACCRUED WHEN THE STORM DRAIN WAS INSTALLED, NOT WHEN THE FLOODING OCCURRED, AND WAS TIME-BARRED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court in this action stemming from flooding cause by a village storm drain, determined the negligent design cause of action against the village was time-barred because it accrued at the time the storm drain was constructed. However the trespass and negligent maintenance causes of action were timely: General Municipal […]

, , ,

ALTHOUGH DEFENDANT IN THIS FORECLOSURE ACTION DID NOT ASSERT THE AFFIRMATIVE DEFENSES OF LACK OF STANDING AND LACK OF PERSONAL JURISDICTION IN THE ANSWER, THE DEFENSES WERE NOT WAIVED AND THE MOTION TO AMEND THE ANSWER SHOULD HAVE BEEN GRANTED; EVEN THOUGH THE STATUTE PROVIDING THAT THE LACK OF STANDING DEFENSE WAS NOT WAIVED WAS NOT ENACTED AT THE TIME THE MOTION WAS DECIDED, THE APPELLATE COURT CAN APPLY THE LAW AS IT EXISTS AT THE TIME OF THE APPELLATE DECISION (SECOND DEPT).

The Second Department, reversing Supreme Court in this foreclosure action, determined the defendant’s failure to assert the plaintiff’s lack of standing and lack of personal jurisdiction in the answer did not waive those affirmative defenses, Defendant’s motion to amend the answer should have been granted. The court noted that even though RPAPL 1302-a, which provides […]

,

HERE IT WAS NOT DEMONSTRATED THAT THE JUDGE LAID OUT THE SPECIFIC CONDUCT DEMONSTRATING A NEGLECT TO PROSECUTE AND IT WAS NOT DEMONSTRATED THE PLAINTIFF WAS AFFORDED NOTICE AND AN OPPORTUNITY TO BE HEARD IN OPPOSITION TO DISMISSAL FOR NEGLECT TO PROSECUTE (SECOND DEPT).

​The Second Department, reversing Supreme Court, determined compliance with the “specific conduct” and “notice” requirements of CPLR 3216 had not been demonstrated. Therefore, he motion to dismiss for neglect to prosecute should not have been granted: Effective January 1, 2015, the legislature amended, in several significant respects, the statutory preconditions to dismissal under CPLR 3216″ […]

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy