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Entries by Bruce Freeman

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THE EVIDENCE OF “PHYSICAL INJURY” IN THIS ASSAULT SECOND PROSECUTION WAS LEGALLY INSUFFICIENT (FOURTH DEPT).

The Fourth Department, reversing defendant’s second degree assault conviction, determined the physical-injury element of the offense was not supported by legally sufficient evidence: … [T]he evidence of the injury inflicted here, viewed objectively, established only that the correction officer sustained slight scraping and scratching, perhaps some bruising, minor swelling in the wrist, a small laceration, […]

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IF A PREMATURE CERTIFICATE OF COMPLIANCE WITH DISCOVERY OBLIGATIONS WAS NOT FILED IN GOOD FAITH, THE STATEMENT OF READINESS FOR TRIAL IS ILLUSORY; MATTER REMITTED FOR A DETERMINATION WHETHER THE CERTIFICATE WAS FILED IN GOOD FAITH; THE JUDGE CONSIDERED ONLY WHETHER DEFENDANT WAS PREJUDICED BY THE POST-CERTIFICATE PRODUCTION OF DISCOVERY (FOURTH DEPT). ​

The Fourth Department, remitting the matter, found the judge applied the wrong criteria for determining whether the People’s premature filling of the certificate of compliance with discovery obligations (CPL 245.50) rendered the ready-for-trial announcement illusory: … [T]he criminal action was commenced on June 9, 2021 (see CPL 1.20 [17]). The People filed their certificate of […]

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PLAINTIFF SUED THE TOWN ALLEGING BREACH OF CONTRACT; TOWN LAW 65 (3) REQUIRED PLAINTIFF TO FILE A NOTICE OF CLAIM WITHIN SIX MONTHS (WHICH PLAINTIFF FAILED TO DO) AND MAKES NO PROVISION FOR FILING A LATE NOTICE; THE COMPLAINT SHOULD HAVE BEEN DISMISSED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined plaintiff in this breach of contract action against the town did not comply with the notice-of-claim requirement in the Town Law and the action therefore should have dismissed. Unlike other notice statutes, Town Law 65 (3) does not allow a late notice of claim: Plaintiff commenced this action […]

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THE JURY SHOULD NOT HAVE BEEN INSTRUCTED ON CONSTRUCTIVE POSSESSION IN THIS CRIMIINAL POSSESSION OF A WEAPON PROSECUTION (FOURTH DEPT).

The Fourth Department, reversing Supreme Court and ordering a new trial, determined the jury should not have been instructed on constructive possession in this criminal possession of a weapon prosecution: … [W]e agree with defendant that the court erred in instructing the jury on constructive possession because there is no view of the evidence from […]

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THE PEOPLE DID NOT DEMONSTRATE THE OFFICERS WHO MADE THE TRAFFIC STOP HAD THE TRAINING AND QUALIFICATIONS TO MAKE A VISUAL ESTIMATE OF THE SPEED OF A VEHICLE; THE SUPPRESSION MOTION SHOULD HAVE BEEN GRANTED (FOURTH DEPT),

The Fourth Department, granting the suppression motion and dismissing the indictment, over a dissent, determined the People did not demonstrate the legality of the traffic stop. Two police officers testified the stop was based on a visual estimate of the vehicle’s speed, 40 to 45 miles per hour in a 30 mph zone. But neither […]

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HERE THE DEFENDANT CLAIMED HE ACTED IN SELF-DEFENSE WHEN HE STABBED THE VICTIM WITH A PEN KNIFE; THE DEFENDANT SOUGHT TO INTRODUCE EVIDENCE OF THE VICTIM’S PRIOR VIOLENT ACTS IN SUPPORT OF THE JUSTIFICATION DEFENSE; THE TRIAL JUDGE INSTRUCTED THE JURY ON THE JUSTIFICATION DEFENSE BUT DID NOT ALLOW EVIDENCE OF THE VICTIM’S PRIOR VIOLENT ACTS TO BE CONSIDERED ON THAT ISSUE; THE COURT OF APPEALS AFFIRMED, UPHOLDING THE RULE THAT THE VICTIM’S PRIOR VIOLENT ACTS ARE NOT ADMISSIBLE PROOF OF JUSTIFICATION UNLESS THE DEFENDANT WAS AWARE OF THE PRIOR VIOLENT ACTS AT THE TIME OF THE INCIDENT (CT APP).

The Court of Appeals, over a two-judge dissenting opinion, affirming defendant’s conviction, determined the rule that evidence of a victim’s prior violent acts should not be admitted in support of the justification defense unless defendant was aware of those prior violent acts at the time of the incident. Here there was evidence the victim had […]

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PLAINTIFFS-TENANTS DID NOT SHOW DEFENDANT LANDLORD ENGAGED IN A FRAUDULANT SCHEME TO DEREGULATE; THEREFORE THE DEFAULT FORMULA TO SET THE BASE DATE RENT PURSUANT TO THE RENT STABILIZATION CODE SHOULD NOT BE USED (CT APP).

The Court of Appeals, reversing the Appellate Division, determined that the default formula for determining the plaintiffs-tenants’ legal regulated rent pursuant to the Rent Stabilization Code should not be used because there was no evidence of a fraudulent scheme to deregulate. Rather defendants’ deregulation was based upon a misinterpretation of the law: Matter of Regina […]

BOTH THE HIPAA PRIVACY RULE AND THE PUBLIC OFFICERS LAW APPLY TO THE FOIL REQUEST FOR RECORDS DOCUMENTING INJURIES SUFFERED BY ATHLETES USING THE OLYMPIC TRAINING FACILITIES IN THE ADIRONDACK PARK; THE HIPAA DEIDENTIFICATION PROCEDURE SHOULD BE APPLIED TO THE REQUESTED RECORDS (THIRD DEPT). ​

The Third Department noted that the HIPAA deidentification procedure was applicable to the FOIL request for sports-related injuries at the Olympic facilities in the Adirondack Park. The FOIL request was made to the respondent NYS Olympic Regional Development Authority: … [T]he health-related information contained in the reports at issue is subject to the protections of […]

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CONFLICTING EXPERT EVIDENCE ABOUT ICE ON THE PARKING LOT BEFORE THE SNOW STORM BEGAN PRECLUDED SUMMARY JUDGMENT IN THIS SLIP AND FALL ACTION (THIRD DEPT).

The Third Department, reversing Supreme Court, over a two-justice dissent, determined there were questions of fact raised by conflicting expert evidence in this ice slip and fall case. Although it was snowing at the time of the fall, there were questions of fact whether the ice was there before it began snowing: … [W]e find […]

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THE NEGLIGENCE CAUSE OF ACTION AGAINST PLAINTIFFS’ INSURANCE BROKERS SHOULD NOT HAVE BEEN DISMISSED; PLAINTIFFS ALLEGED THE BROKERS FAILED TO PROCURE ADEQUATE COVERAGE AND FAILED TO INFORM PLAINTIFFS OF THE DEFINITIONS AND TERMS OF THE POLICY (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined the plaintiffs-insureds’ negligence cause of action against their insurance brokers should not have been dismissed: Supreme Court improperly dismissed plaintiffs’ causes of action for negligence against Thompson Flanagan and WIA, the brokers. Plaintiffs sufficiently pleaded a cause of action for negligence against the brokers which was distinct […]

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