Bruce Freeman, Author at New York Appellate Digest

Contract Law

DEFENDANT BREACHED THE CONTRACT BY FAILING TO COMPLY WITH THE NOTICE-TO-CURE PROVISION BEFORE TERMINATING IT; THE REASON FOR TERMINATION, FAULTY WORK, WAS NOT EXEMPT FROM THE NOTICE-TO-CURE REQUIREMENT (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Acosta, determined defendant breached the contract by failing to comply with the notice-to-cure provision before terminating it. Defendant general contractor (Borough) subcontracted with plaintiff to perform steel work at a residential development project. The subcontract required plaintiff to supply and install steel for excavation support and […]

October 12, 2021 /0 Comments/by Bruce Freeman

Appeals, Attorneys, Criminal Law, Judges

DEFENDANT’S WAIVER OF APPEAL WAS UNENFORCEABLE; “DIFFICULTIES” BETWEEN DEFENDANT AND TWO ATTORNEYS ASSIGNED TO REPRESENT HIM DID NOT AMOUNT TO DEFENDANT’S FORFEITURE OF HIS RIGHT TO COUNSEL, AS THE TRIAL JUDGE HAD RULED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Fahey, reversing the Appellate Division, determined defendant’s waiver of appeal was not valid and the trial judge had violated defendant’s right to counsel by essentially forcing defendant to represent himself after several attorneys had withdrawn. Of all the attorneys who had withdrawn, only two cited […]

October 12, 2021 /0 Comments/by Bruce Freeman

Correction Law, Employment Law, Human Rights Law

PLAINTIFF STATED A CAUSE OF ACTION UNDER THE CORRECTION LAW BY ALLEGING HIS APPLICATION FOR REEMPLOYMENT AFTER COMPLETION OF HIS SENTENCE (60 DAYS INCARCERATION) WAS DENIED SOLELY BECAUSE OF HIS PRIOR CONVICTION (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, over a concurring opinion, reversing the Appellate Division, determined plaintiff’s complaint stated a cause of action for discrimination under the Correction Law, which prohibits discrimination based upon criminal convictions in the context of applications for employment. Plaintiff had kept his employer informed of a […]

October 12, 2021 /0 Comments/by Bruce Freeman

Constitutional Law, Criminal Law, Municipal Law, Negligence, Vehicle and Traffic Law

NYC’S RIGHT OF WAY LAW CRIMINALIZES ORDINARY NEGLIGENCE WHEN A VEHICLE STRIKES A PEDESTRIAN OR A BICYCLIST WHO HAS THE RIGHT OF WAY; THE LAW IS NOT VOID FOR VAGUENESS, PROPERLY IMPOSES ORDINARY NEGLIGENCE AS THE MENS REA, AND IS NOT PREEMPTED BY OTHER LAWS (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Garcia, over a concurring opinion, determined New York City’s “Right of Way Law,” which criminalizes ordinary negligence when a vehicle strikes a pedestrian or bicyclist who has the right of way, is constitutional and is not preempted by other laws. Both defendants were convicted under […]

October 12, 2021 /0 Comments/by Bruce Freeman

Criminal Law, Evidence

THE PAT DOWN SEARCH OF DEFENDANT TRAFFIC OFFENDER WAS NOT SUPPORTED BY REASONABLE SUSPICION (FOURTH DEPT).

The Fourth Department, reversing County Court, determined the pat down search of defendant traffic offender was not supported by reasonable suspicion: … [A] pat down search of a traffic offender is not authorized unless, when the vehicle is stopped, there is reasonable suspicion that the defendant is armed or poses a threat to the officer’s […]