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Entries by Bruce Freeman

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ALTHOUGH THE PEOPLE’S SANDOVAL APPLICATION WAS DISCUSSED IN CHAMBERS AND THE DEFENDANT WAS NOT PRESENT, THE MAJORITY CONCLUDED THAT THE JUDGE’S SUBSEQUENTLY ASKING, IN OPEN COURT AND IN THE DEFENDANT’S PRESENCE, WHETHER THE DEFENSE WANTED TO BE HEARD ON THE APPLICATION WAS SUFFICIENT; THE DISSENT DISAGREED (FOURTH DEPT).

The Fourth Department, over a dissent, determined that. although a discussion of the People’s Sandoval application was held in chambers when the defendant was not present, there was subsequent open-court proceeding in the defendant’s presence in which the judge offered the defense the opportunity to be heard on the application. The dissent argued the decision […]

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NON-RESPONDENT FATHER’S APPEAL OF THE PLACEMENT OF HIS CHILDREN WITH THE DEPARTMENT OF FAMILY AND CHILDREN’S SERVICES WAS NOT MOOT; THE CHILDREN HAD BEEN PLACED WITH RELATIVES; PLACEMENT WITH THE DEPARTMENT, AS OPPOSED TO WITH RELATIVES, TRIGGERS THE POSSIBLE FUTURE TERMINATION OF FATHER’S PARENTAL RIGHTS (FOURTH DEPT).

The Fourth Department determined non-respondent father’s appeal of the placement of his children with the department of family and children’s services was not moot. The children had been placed with relatives. Placement with the department of family and children’s services, as opposed to with relatives, triggers the possible termination of father’s parental rights: … [T]he […]

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PLAINTIFF, AGE 61, WAS HIRED FOR AS A CORRECTIONS OFFICER BUT RESIGNED AFTER TWO DAYS AT THE TRAINING ACADEMY; PLAINTIFF STATED A CAUSE OF ACTION FOR AGE DISCRIMINATION AND A HOSTILE WORK ENVIRONMENT; PLAINTIFF WAS NICKNAMED “GRANDMA” AND SUBJECTED TO RIDICULE (THIRD DEPT). ​

The Third Department, reversing Supreme Court, determined plaintiff stated a cause of action for age discrimination/hostile work environment. Plaintiff, aged 61, was hired as a corrections officer. She only lasted a couple of days at the training academy. She allegedly was immediately nicknamed “Grandma” and was subjected to ridicule: Even though plaintiff admitted that she […]

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PLAINTIFF SUED THE CITY AND POLICE UNDER 42 USC 1983 ALLEGING THE CITY AND POLICE HAD AN UNCONSTITUTIONAL POLICY OR PRACTICE ALLOWING POLICE OFFICERS TO FILE FALSE CHARGES, TESTIFY FALSELY AND FALSIFY EVIDENCE WITHOUT CONSEQUENCES; PLAINTIFF WAS ENTITLED TO RECORDS OF SIMILAR COMPLAINTS OR INVESTIGATIONS PURSUANT TO THE CPLR DISCOVERY PROVISIONS AND WAS NOT RESTRICTED TO A FOIL REQUEST (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined plaintiff’s request for certain police records should not have been denied. Plaintiff sued the city under 42 USC 1983 alleging an unconstitutional policy or practice by the police which allows officers to swear out false criminal charges, testify falsely at trial and falsify evidence without consequences. Plaintiff […]

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IN THIS SIDEWALK SLIP AND FALL CASE, THE MASTER LEASE VIOLATED GENERAL OBLIGATIONS LAW 5-321 WHICH PROHIBITS A LEASE AGREEMENT FROM PROVIDING THE LANDLORD BE INDEMNIFIED FOR LIABILITY FOR THE LANDLORD’S OWN NEGLIGENCE (FIRST DEPT). ​

The First Department, in this sidewalk slip and fall case, in a decision too complex to fairly summarize here, determined a provision of the master lease violated General Obligations Law 5-321: General Obligations Law § 5-321 states that “[e]very covenant, agreement or understanding in or in connection with or collateral to any lease of real […]

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A MUTUAL MISTAKE IN AN AGREEMENT CONCERNING THE PRICE OF SHARES OF STOCK WARRANTED REFORMATION OF THE CONTRACT (FIRST DEPT). ​

The First Department, in a full-fledged opinion by Justice Pitt-Burke, determined a mutual mistake in an agreement justified reformation of the contract. The opinion is too detailed to fully summarize here: … [W]e find that Supreme Court correctly held that the parties intended to include an antidilution provision that provided for the adjustment of both […]

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THE JUVENILE DELINQUENCY PETITIONS WERE TIMELY FILED; THE CORRECT APPLICATION OF THE COVID TOLL OF THE STATUTE OF LIMITATIONS EXPLAINED (FIRST DEPT).

The First Department, reversing Family Court, determined the juvenile delinquency petitions were timely fifed because of the COVOD toll imposed by the Executive Orders: By Executive Order No. 8.202.8, issued on March 20, 2020 due to the Covid-19 pandemic, the “time limit[s] for the commencement, filing, or service of any legal action, notice, motion, or […]

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DEFENDANT SUFFICIENTLY RAISED INEFFECTIVE ASSISTANCE AND PREJUDICE ISSUES IN HIS MOTION TO VACATE HIS CONVICTION BECAUSE HE WAS NOT INFORMED HE COULD BE DEPORTED BASED ON THE GUILTY PLEA; THE JUDGE SHOULD NOT HAVE DENIED THE MOTION WITHOUT A HEARING (FIRST DEPT). ​

The Frist Department, reversing Supreme Court and recalling and vacating a prior appellate decision, determined defendant sufficiently raised ineffective assistance of counsel and prejudice in his motion to vacate his conviction on the ground he was not informed of the possibility of deportation before entering a guilty plea. The motion should not have been denied […]

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THE COMPLAINT STATED CAUSES OF ACTION FOR UNDUE INFLUENCE, CONVERSION AND UNJUST ENRICHMENT (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined plaintiff stated causes of action for conversion, unjust enrichment and undue influence exercised by the defendant with regard to changing the beneficiary on a $6 million account: … [T]he circumstances requiring scrutiny include the alleged facts that plaintiff was decedent’s closest living relative, that they had a continuing […]

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DNA EVIDENCE RECOVERED AFTER THE DEFENDANT WAS CONVICTED OF MURDER POINTED TO THE VICTIM’S BOYFRIEND AS THE PERPETRATOR; BECAUSE THE EVIDENCE AGAINST THE DEFENDANT WAS A SINGLE IDENTIFICATION WITNESS WHO WAS 88 YEARS OLD AND HAD POOR VISION, THE DNA EVIDENCE MAY HAVE LED TO A MORE FAVORABLE VERDICT; NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, vacating defendant’s murder conviction and ordering a new trial, determined the DNA evidence (from under the victim’s fingernails) procured after the trial may have resulted in a verdict more favorable to the defendant. Defendant was identified as the perpetrator by an 88-year-old witness who had poor vision. The DNA recovered from the […]

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