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Entries by Bruce Freeman

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IN A PROCEEDING SEEKING FINDINGS TO ENABLE A CHILD TO APPLY FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) THE SUBMISSION OF CERTIFIED COPIES OF BIRTH CERTIFICATES OR DEATH CERTIFICATES IS NOT REQUIRED; THE PROCEEDING SHOULD NOT HAVE BEEN DISMISSED ON THAT GROUND (SECOND DEPT).

The Second Department, reversing Family Court, determined this proceeding seeking findings to enable the child to apply for special immigrant juvenile status (SIJS) should not have been dismissed on the ground that certified copies of birth certificates and/or death certificates were not submitted: … [P]etitioner … commenced this proceeding pursuant to Family Court Act article […]

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FAMILY COURT SHOULD HAVE GRANTED THE GUARDIANSHIP PETITIONS AND MADE FINDINGS ENABLING THE CHILDREN TO APPLY FOR SPECIAL IMMIGRANT JUVENILE STATE (SIJS) (SECOND DEPT).

The Second Department, reversing Family Court, determined the guardianship petitions should have been granted and findings enabling the children to apply for special immigrant juvenile status should have been made: … [T]he record supports a finding that the children are under the age of 21 and unmarried, and, since we have appointed the petitioner as […]

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IN THIS DIVORCE PROCEEDING (1) THE HUSBAND’S REQUEST FOR CLOSURE OF THE COURTROOM SHOULD HAVE BEEN PUBLIC, NOT CONCEALED FROM THE PUBLIC IN EMAILS, AND (2), THE COURTROOM CLOSURE WAS IMPROPERLY BASED ON AN EXCEPTION TO THE PUBLIC-TRIAL REQUIREMENT WHICH IS NOT INCLUDED IN JUDICIARY LAW SECTION 4 (FIRST DEPT).

The First Department, reversing Supreme Court, determined the judge should not have ordered closure of the courtroom pursuant to Judiciary Law section 4 in this divorce proceeding. The criteria for closure of a courtroom are discussed in some detail. Here the judge ordered some documents to be submitted under seal and then based the closure […]

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THE LETTER OF INTENT WAS AN AGREEMENT TO AGREE WHICH CONTEMPLATED ONLY OUT-OF-POCKET DAMAGES FOR A BREACH; THE JUDGE SHOULD NOT HAVE RELIED ON CREDIBILITY DETERMINATIONS TO, SUA SPONTE, AWARD SUMMARY JUDGMENT TO PLAINTIFFS (FIRST DEPT).

​The First Department, reversing Supreme Court, determined that the letter of intent (LOI) was an agreement to agree which, if breached, supported only out-of-pocket damages, not cover damages. The judge improperly relied on credibility determinations to, sua sponte, award summary judgment to plaintiffs: … [R]ecovery for breach of a preliminary agreement’s confidentiality provision could not […]

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THE STATUTE PROHIBITING SEX OFFENDERS FROM BEING WITHIN 1000 FEET OF SCHOOL GROUNDS AS APPLIED TO SEX OFFENDERS CONVICTED BEFORE THE STATUTE WENT INTO EFFECT DOES NOT VIOLATE THE EX POST FACTO CLAUSE; HERE PETITIONER WAS INCARCERATED PAST HIS PAROLE DATE BECAUSE HOUSING WHICH COMPLIED WITH THE SCHOOL GROUNDS LAW COULD NOT BE FOUND (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge Singas, three judges dissenting, determined the statute (Executive Law 259-c [14]) prohibiting sex offenders from being within 1000 feet of school grounds as applied to sex offenders who were convicted before the statute went into effect does not violate the Ex Post Facto Clause of […]

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THE STATUTE PROHIBITING SEX OFFENDERS ON PAROLE FROM BEING WITHIN 1000 FEET OF SCHOOL GROUNDS APPLIES TO YOUTHFUL OFFENDERS (CT APP). ​

The Court of Appeals, reversing the appellate division, in a full-fledged opinion by Judge Halligan, determined the statute prohibiting a sex offender on parole from being within 1000 feet of school grounds applies to youthful offenders: The Sexual Assault Reform Act (SARA) imposes a mandatory restriction prohibiting a person who is “serving a sentence” for […]

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ALTHOUGH THE CORRECTIONS OFFICERS CONDUCTING A STRIP SEARCH OF CLAIMANT PRISONER WERE PARTIALLY MOTIVATED BY THE INTENT TO HUMILIATE, THEY WERE DEEMED TO BE ACTING WITHIN THE SCOPE OF THEIR EMPLOYMENT AND THE STATE IS VICARIOUSLY LIABLE FOR THEIR INTENTIONAL TORTS (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice McShan, determined the state was properly found liable for the actions of corrections officers who conducted a strip search of claimant prisoner. The strip search protocol includes having a male inmate lift his testicles and spread his cheeks. Here the corrections officers repeatedly made claimant touch […]

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THE EMAIL EXCHANGES BETWEEN ATTORNEYS DID NOT CONSTITUTE A VALID SETTLEMENT AGREEMENT AND DID NOT MEET THE STATUTORY REQUIREMENTS OF A STIPULATION OF SETTLEMENT; THE DISSENTERS ARGUED THE EMAIL EXCHANGES EVINCED AN ENFORCEABLE AGREEMENT (THIRD DEPT).

​The Third Department, reversing Surrogate’s Court, determined: (1) the email exchanges between the parties’ attorneys did not constitute a settlement agreement; and (2) to be valid any stipulation of settlement must be placed on the record in open court, reduced to a court order and contained in a writing subscribed by the parties or counsel […]

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A SUMMARY JUDGMENT MOTION BROUGHT BEFORE ISSUE IS JOINED IS PREMATURE AND SHOULD NOT BE CONSIDERED (THIRD DEPT). ​

The Third Department, reversing Supreme Court, noted that a summary judgment motion brought before issue is joined should not be considered: Initially, we discern no error with Supreme Court treating plaintiff’s order to show cause, filed two days after commencement of the action, essentially as a motion for summary judgment seeking ultimate relief … . […]

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DEFENDANT’S POSITIVE PERFORMANCE IN THE PRISON SEX OFFENDER TREATMENT AND EDUCATIONAL PROGRAMS, GIVEN THE SERIOUSNESS OF HIS OFFENSES, DID NOT WARRANT A DOWNWARD DEPARTURE FROM LEVEL THREE TO LEVEL TWO; TWO-JUDGE DISSENT (CT APP).

The Court of Appeals, affirming the appellate division, over a two-justice dissent, determined defendant’s request for a downward departure in this SORA risk-level proceeding (level three to level two) was properly denied: In 1988, defendant was convicted after trial of four counts of first-degree rape and four counts of first-degree sodomy, among other crimes, for […]

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