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Entries by Bruce Freeman

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PLAINTIFF STEPPED OFF A CURB AND FELL INTO A FOUR-FOOT DEEP STORM DRAIN; THE GRATE WHICH USUALLY COVERED THE DRAIN WAS FOUND AT THE BOTTOM; THE DEFENDANT MUNICIPALITY DID NOT DEMONSTRATE IT DID NOT HAVE CONSTRUCTIVE NOTICE OF THE CONDITION; DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant municipality’s motion for summary judgment in this slip and fall case should not have been granted. Plaintiff stepped off a curb into a four-foot deep storm drain. The grate which usually covers the drain was found at the bottom of the drain. The municipality did not show […]

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EVEN THOUGH DEFENDANT CLAIMED THE STABBING INJURIES WERE ACCIDENTAL, HE WAS ENTITLED TO A JURY INTSTRUCTION ON THE JUSTIFICATION DEFENSE (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction, determined defendant was entitled to have the jury instructed on the justification defense despite his claim the stabbing injuries were an accident. Defendant alleged the complainant attacked him with a knife and, in self-defense, he grabbed her arm and pinned it behind her back, causing the injuries. The court […]

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DEFENDANT WAS IMPROPERLY SUBSTITUTED AS A JOHN DOE IN THIS FORECLOSURE ACTION AND BECAUSE HE WAS SUED AS AN HEIR TO THE MORTGAGEE, AND NOT AS A REPRESENTATIVE OF THE MORTGAGEE’S ESTATE, THE ACTION WAS TIME BARRED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court in this foreclosure action, determined defendant was not properly substituted in the amended complaint for a John Doe in the original complaint and, because defendant was sued in his capacity as the heir of the decedent, and not as a representative of the decedent’s estate, the action was time-barred: […]

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THE RECORDED CONVERSATION BETWEEN THE 15-YEAR-OLD DEFENDANT AND HIS FATHER IN THE POLICE INTERVIEW ROOM IS PROTECTED BY PARENT-CHILD PRIVILEGE AND SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT).

The Fourth Department, reversing defendant’s murder convictions, determined the recorded conversation between the 15-year-old defendant and his father in the interview room at the police station was protected by parent-child privilege and should have been suppressed. The defendant had requested a lawyer and the police had left the interview room at the time the conversation […]

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THE PLAINTIFF MADE A LEFT TURN IN FRONT OF DEFENDANT WHEN DEFENDANT HAD THE RIGHT OF WAY; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS TRAFFIC ACCIDENT CASE SHOULD HAVE BEEN GRANTED; PLAINTIFF’S AFFIDAVIT ALLEGING DEFENDANT ATTEMPTED TO GO AROUND ANOTHER VEHICLE WAS BASED ON SPECULATION WHICH IS NOT SUFFICIENT TO DEFEAT SUMMARY JUDGMENT (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court, determined defendant’s motion for summary judgment in this intersection traffic accident case should have been granted. Plaintiff made a left turn in front of defendant who had the right of way: … [D]efendant met his initial burden of establishing that he was not negligent because he had the right-of-way […]

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THE MAJORITY CONCLUDED THAT EVEN IF DEFENDANT WAS ILLEGALLY FRISKED AND DETAINED OUTSIDE OF HIS VEHICLE, THE DEPUTY’S SEEING COCAINE ON THE DRIVER’S SEAT PROVIDED PROBABLE CAUSE FOR THE SEARCH OF THE VEHICLE; THE TWO-JUSTICE DISSENT ARGUED THE OBSERVATION OF THE DRUGS WAS A PRODUCT OF THE ILLEGAL FRISK AND DETENTION OF THE DEFENDANT (FOURTH DEPT). ​

The Fourth Department, over a two-justice dissent, determined the motion to suppress evidence seized from a vehicle was properly denied. After observing what appeared to be a drug transaction the defective called for assistance. As one of the deputies approached defendant’s vehicle, defendant got out and walked toward the deputy. The deputy frisked the defendant, […]

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PLAINTIFF ALLEGED HE WAS DENIED PROPER MEDICAL CARE IN THE NIAGARA COUNTY JAIL AND SUED THE JAIL DOCTOR, THE COUNTY AND THE SHERIFF; THE CAUSES OF ACTION ALLEGING THE VIOLATION OF PLAINTIFF’S CIVIL RIGHTS PURSUANT TO 42 USC 1983 SURVIVED MOTIONS TO DISMISS; OTHER CAUSES OF ACTION WERE DEEMED TIME-BARRED; ACTIONS ALLEGING THE COUNTY WAS VICARIOUSLY LIABLE FOR THE ACTS OF THE SHERIFF WERE DISMISSED; THE RELATION-BACK DOCTRINE DID NOT APPLY BECAUSE THE COUNTY AND SHERIFF WERE NOT DEEMED “UNITED IN INTEREST” (FOURTH DEPT). ​

The Fourth Department, reversing (modifying) Supreme Court, determined some causes of action should have been dismissed and others should not have been dismissed in this action against the county, county employees and sheriff alleging plaintiff was denied proper medical care while he was an inmate in the Niagara County Jail. The medical malpractice and negligence […]

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THE JUDGE’S FAILURE TO MAKE FINDINGS OF FACT IN THIS CUSTODY CASE PRECLUDED APPELLATE REVIEW; MATTER REMITTED (FOURTH DEPT),

The Fourth Department, remitting the matter to Family Court, determined the judge’s failure to make findings of fact in this custody case precluded appellate review: The court, in the order on appeal, however, failed to make any factual findings whatsoever to support the award of primary physical custody. It is “well established that the court […]

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DEFENSE COUNSEL WAS INEFFECTIVE IN FAILING TO INVESTIGATE THE ROBBERY VICTIM’S STATEMENT THAT DEFENDANT WAS NOT ONE OF THE PERPETRATORS; NEW TRIAL ORDERED (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction, determined defendant did not receive effective assistance counsel in that counsel did not investigate the robbery victim’s statement which indicated defendant was not one of the perpetrators: … [T]he second victim’s hearing testimony that defendant was not present during the shooting is consistent with his initial statement to law […]

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THE JUDGE SHOULD NOT HAVE LEFT IT TO THE AGENCY TO DETERMINE FATHER’S VISITATION AND SHOULD NOT HAVE MADE THERAPEUTIC COUNSELING A PREREQUISITE FOR VISITATION (FOURTH DEPT). ​

The Fourth Department, reversing (modifying) Family Court determined (1) the judge should not have left it to the agency to decide whether father should receive visitation, and (2) father’s participation in therapeutic counseling should not have been made a prerequisite to unsupervised overnight weekend visitation: … [T]he court erred in failing to set an appropriate […]

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