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Entries by Bruce Freeman

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PLAINTIFF-STUDENT’S CHEMICAL BURNS WERE CAUSED BY THE INTENTIONALLY WRONGFUL, SPONTANEOUS, UNFORESEEABLE ACTS OF THIRD PARTIES OVER WHOM DEFENDANT SCHOOL HAD NO CONTROL OR AUTHORITY; STUDENTS HAD APPARENLY PUT DRANO IN A WATER BOTTLE WHICH PLAINTIFF KICKED; TWO-JUSTICE DISSENT ARGUED THE SCHOOL DID NOT MEET ITS BURDEN OF PROOF ON ITS LACK OF NOTICE (FIRST DEPT). ​

The First Department, over a two-justice dissent, determined defendant charter school [Mission] did not have notice of the dangerous condition which allegedly caused plaintiff-student’s chemical burns. Plaintiff kicked a plastic water bottle which had Drano in it, called a Drano bomb. Plaintiff alleged school personnel knew or should have known other students were making the […]

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FAMILY COURT SHOULD NOT HAVE DISMISSED FATHER’S MODIFICATION OF CUSTODY PETITION WITHOUT HOLDING A BEST INTERESTS HEARING, SHOULD HAVE ACCEPTED THE FACTS ALLEGED IN THE PETITION AS TRUE, AND SHOULD NOT HAVE RELIED ON UNSWORN INFORMATION FROM THE ATTORNEYS (THIRD DEPT). ​

The Third Department, reversing Family Court, determined father’s petition for a modification of custody should not have been dismissed without holding a best interests hearing. The Third Department noted that Family Court should have accepted the facts alleged in the petition as true and should not have relied on unsworn information provided by the attorneys: […]

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IN THIS OIL SPILL CLEAN UP SUIT AGAINST THE PROPERTY OWNER BROUGHT UNDER THE NAVIGATION LAW, THERE IS NO STATUTE PROHIBITING THE STATE FROM SEEKING INDEMNIFICATION FOR FUNDS EXPENDED FROM THE ENVIRONMENTAL RESTORATION PROGRAM FUND PURSUANT TO THE ENVIRONMENTAL CONSERVATION LAW (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the complaint seeking reimbursement of oil spill clean up costs from the defendant property owner should not have been dismissed. Defendant argued the state could not seek reimbursement under the Navigation Law for funds expended from the Environmental Restoration Program Fund pursuant to the Environmental Conservation Law. The Third […]

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IN THIS DIVORCE ACTION, THE SETTLEMENT AGREEMENT STATED THE WIFE’S INCOME WAS WELL BELOW THE FEDERAL POVERTY LEVEL YET SHE WAIVED SPOUSAL SUPPORT; GENERAL MUNICIPAL LAW 5-311 MAY, THEREFORE, HAVE BEEN VIOLATED; ALTHOUGH THE AGREEMENT AS A WHOLE WAS NOT UNCONSCIONABLE, THE MATTER WAS SENT BACK TO ALLOW THE JUDGE TO ENQUIRE ABOUT THE WAIVER (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court in this divorce action, determined a portion of the settlement agreement may violate the General Municipal Law and sent the matter back for further inquiry by the judge. The wife’s income is well below the federal poverty guidelines yet she waived spousal support: General Obligations Law § 5-311 […]

THE REASONS PROVIDED BY THE ZONING BOARD OF APPEALS FOR THE DENIAL OF A USE VARIANCE TO ALLOW CONSTRUCTION OF A SOLAR ARRAY WERE IRRATIONAL (THIRD DEPT). ​

The Third Department reversed Supreme Court and annulled the determination of the zoning board of appeals [ZBA] which denied a use variance to allow construction of a solar array by Source Renewables. The decision is fact-specific and cannot be fairly summarized here. The Third Department determined the reasons the board gave for finding certain criteria […]

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THE SUBSTANCE FOUND ON PETITIONER-INMATE’S PERSON WAS NOT TESTED OR OTHERWISE IDENTIFIED AS A DRUG; THE DRUG POSSESSION AND DISTRIBUTION, AS WELL AS THE SMUGGLING, DETERMINATIONS ANNULLED (THIRD DEPT).

The Third Department, held the drug possession and distribution, as well as the smuggling, determinations should be annulled. A drug sniffing dog alerted to a substance on petitioner-inmate’s person but no testing or other identification of the substance was done: At the prison disciplinary hearing, it was established that the suspected substance was not subjected […]

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HERE THE STUDENT WITH DISABILITIES WAS UNSUPERVISED IN GYM CLASS WHEN SHE WAS INJURED; THE DEFENDANT SCHOOL DISTRICT SUCCESSFULLY EXCLUDED EVIDENCE THAT MORE SUPERVISION OF THE STUDENT WAS NEEDED BECAUSE SUCH EVIDENCE PURPORTEDLY CONFLICTED WITH THE STUDENT’S “AMERICANS WITH DISABILITIES ACT 504 PLAN” (WHICH DID NOT CALL FOR EXTRA SUPERVISION) AND THEREFORE EXTRA SUPERVISION WOULD HAVE AMOUNTED TO DISCRIMINATION; THE THIRD DEPARTMENT REJECTED THE ARGUMENT FINDING THAT THE 504 PLAN DID NOT ACT AS A CEILING FOR THE LEVEL OF SUPERVISION TO BE AFFORDED THE STUDENT AND ORDERED A NEW TRIAL (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Garry, reversing the judgment and ordering a new trial, determined expert evidence and lay-witness testimony should not have been excluded from this negligent-supervision-of-a-student trial. The student had some physical disabilities and a “504 plan” had been developed for her pursuant to the Americans with Disabilities Act […]

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THE RECORD DID NOT SUPPORT THE FINDING THAT FATHER NEGLECTED THE CHILD BASED ON MOTHER’S DRUG USE WHEN SHE WAS PREGNANT; ALTHOUGH FATHER DID NOT REPORT MOTHER’S DRUG USE TO HER PROBATON OFFICER, FATHER MADE EFFORTS TO INTERVENE RE: MOTHER’S DRUG USE DURING THE PREGNANCY (THIRD DEPT).

The Third Department, reversing Family Court, determined the record did not support a finding that father (respondent) neglected the child based on mother’s drug use when she was pregnant: Respondent argues that Family Court erred when it found that, knowing that the mother was abusing drugs while pregnant with the daughter, respondent failed to exercise […]

THE MURDER SECOND DEGREE COUNTS MUST BE DISMISSED AS INCLUSORY CONCURRENT COUNTS OF THE MURDER FIRST DEGREE CONVICTION (THIRD DEPT).

The Third Department, affirming defendant’s convictions in this arson-murder case, noted that the two murder second degree counts were conclusory concurrent counts of the murder first degree count and must be dismissed: … [T]he judgment must be modified, as the two counts of murder in the second degree upon which defendant was convicted are inclusory […]

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​ THE PEOPLE DID NOT HAVE THE DOCUMENT OFFERED TO PROVE DEFENDANT’S MASSACHUSETTS CONVICTION CERTIFIED PURSUANT TO CPLR 4540; SECOND FELONY OFFENDER SENTENCE VACATED (THIRD DEPT). ​

The Third Department, vacating defendant’s sentence as a second felony offender, determined the proof of the Massachusetts conviction which was the basis for the second felony offender status was deficient: … [T]he People offered a copy of a “warrant” transferring defendant from local custody to state prison, as well as a copy of defendant’s public docket […]

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