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Entries by Bruce Freeman

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ALTHOUGH THE POLICE HAD VISITED PLAINTIFF SEVERAL TIMES IN RESPONSE TO HER CALLS ABOUT HER EX-BOYFRIEND’S VIOLATIONS OF THE ORDER OF PROTECTION AND THE POLICE HAD SPOKEN TO HER EX-BOYFRIEND (WHO LIVED DIRECTLY ABOVE HER), THE MAJORITY CONCLUDED THERE WAS NO SPECIAL RELATIONSHIP BETWEEN PLAINTIFF AND THE POLICE SUCH THAT PLAINTIFF COULD HAVE JUSTIFIABLY RELIED ON THE POLICE FOR PROTECTION; HER EX-BOYFRIEND SUBSEQUENTLY THREW HER OUT OF A SECOND-FLOOR WINDOW (CT APP).

The Court of Appeals, over two extensive dissenting opinions, determined the fact plaintiff’s ex-boyfriend was subject to an order of protection at the time he attacked her and threw her out of a second-floor window did not create a special relationship with the police such that the municipality would be liable for failing to protect […]

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PLAINTIFF’S DECEDENT WAS TORTURED AND MURDERED IN HER HOME BY HER MOTHER AND BROTHER; ALTHOUGH COUNTY AUTHORITIES HAD BEEN CALLED TO INVESTIGATE ALLEGATIONS PLAINTIFF’S DECEDENT HAD SUFFERED INJURIES AND SHERIFFS HAD RETURNED PLAINTIFF’S DECEDENT TO HER HOME AFTER SHE RAN AWAY, THERE WAS NO SPECIAL RELATIONSHIP WITH THE COUNTY SUCH THAT PLAINTIFF’S DECEDENT JUSTIFIABLY RELIED ON INTERVENTION BY COUNTY AUTHORITIES (CT APP).

​The Court of Appeals, in a full-fledged opinion by Judge Troutman, over an extensive dissenting opinion, determined plaintiff did not raise a question of fact about the existence of a special relationship between plaintiff’s decedent, Laura, and the county such that the county could be liable for the torture and murder of Laura by her […]

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PURSUANT TO UCC 9-406 A LENDER’S SECURITY INTEREST IN A DEBTOR’S ACCOUNTS-RECEIVABLES IS AN ASSIGNMENT SUCH THAT A THIRD-PARTY WHICH HAS NOTICE OF THE ASSIGNMENT MUST MAKE ANY PAYMENTS OWED TO THE DEBTOR DIRECTLY TO THE LENDER (CT APP). ​

​The Court of Appeals, reversing the appellate division, in a full-fledged opinion by Judge Wilson, determined that UCC 9-406 allowed the lender to collect the accounts-receivables owed to the debtor by third-parties. The lender (Worthy) had a security interest in payments made by a third-party (New Style) to the debtor (Checkmate) after the New Style […]

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DEFENSE COUNSEL INEFFECTIVE FOR FAILING TO FILE A SUPPRESSION MOTION; THE FAILURE “INFECTED” THE GUILTY PLEA BECAUSE SUPPRESSION COULD HAVE LED TO DISMISSAL OF SOME OF THE INDICTMENT (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction, determined defense counsel’s failure to make a suppression motion constituted ineffective assistance: … [W]e conclude that the record establishes that defense counsel could have presented a colorable argument that defendant’s detention was illegal and thus that any evidence obtained as a result thereof should have been suppressed as the […]

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A MALFUNCTION OF THE AUDIO RECORDING DEVICE MADE IT IMPOSSIBLE TO TRANSCRIBE PORTIONS OF THE TRIAL; THE APPELLATE COURT SENT THE MATTER BACK FOR A RECONSTRUCTION HEARING (FOURTH DEPT). ​

The Fourth Department, sending the matrimonial action back for a reconstruction hearing, determined the inability to transcribe portions of the audio recording prejudiced the parties: “Parties to an appeal are entitled to have that record show the facts as they really happened at trial, and should not be prejudiced by an error or omission of […]

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ALTHOUGH THE ISSUE WAS NOT PRESERVED FOR APPEAL, THE FAILURE TO GIVE THE CIRCUMSTANTIAL-EVIDENCE JURY INSTRUCTION WAS REVERSIBLE ERROR (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction of criminal possession of a weapon, determined the evidence was entirely circumstantial requiring that the jury be instructed on the circumstantial-evidence standard of proof. The issued had not been preserved for appeal: Supreme Court erred in failing to give a circumstantial evidence instruction. The evidence against defendant with respect […]

SUPREME COURT PROPERLY DISMISSED DEFENDANTS’ SOLE-PROXIMATE-CAUSE AFFIRMATIVE DEFENSE IN THIS LABOR LAW 240(1) LADDER-FALL CASE; TWO JUSTICE DISSENT (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, determined plaintiff was entitled to summary judgment dismissing defendants’ sole-proximate-cause affirmative defense to the Labor Law 240(1) cause of action. Plaintiff used an eight-foot A-frame ladder to work on an overhead door mechanism and stood on the second to the highest step. The dissenters argued there was a […]

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A CHILD IN A CUSTODY PROCEEDING IS ENTITLED TO EFFECTIVE ASSISTANCE OF COUNSEL BY THE ATTORNEY-FOR-THE-CHILD (AFC), WHICH INCLUDES ADVOCATING THE CHILD’S POSITION EVEN IF THE AFC DISAGREES (FOURTH DEPT). ​

The Fourth Department, reversing Family Court, determined the child received ineffective assistance in this modification of custody proceeding. With a couple of exceptions, even if the attorney-for-the-child (AFC) doesn’t agree with it, he or she must argue the child’s position: … [T]he AFC “must zealously advocate the child’s position” (22 NYCRR 7.2 [d]). “[I]n ascertaining […]

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PLAINTIFF BICYCLIST ALLEGED HE STRUCK A FALLEN SIGNPOST WHICH WAS OBSTRUCTING THE SIDEWALK; THE TOWN DID NOT DEMONSTRATE IT DID NOT HAVE NOTICE OF THE CONDITION; PLAINTIFF DEMONSTRATED HE WAS ENTITLED TO DISCOVERY OF TOWN DOCUMENTS RELATED TO THE REPAIR OF TOWN SIGNS (FOURTH DEPT). ​

The Fourth Department, reversing (modifying) Supreme Court, determined (1) the town did not demonstrate it did not have written notice of the fallen signpost on the sidewalk (which plaintiff bicyclist allegedly struck), and (2) plaintiff demonstrated the town should comply with discovery demands for documents relating to the existence and repair of signs by the […]

THE MAJORITY HELD THE INSTALLATION OF AN AIR TANK ON A FLATBED TRAILER WAS NOT A COVERED ACTIVITY UNDER LABOR LAW 240(1); THE DISSENT ARGUED THE TRAILER WAS A “STRUCTURE” WITHIN THE MEANING OF THE STATUTE (FOURTH DEPT). ​

The Fourth Department, over a two-justice dissent, determined plaintiff was not engaged in an activity protected by Labor Law 240(1) when he was injured. Plaintiff, a diesel technician, was injured installing an air tank on a flatbed trailer at a recycling plant. The majority concluded the plaintiff was not involved in construction, renovation or alteration […]

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