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Entries by Bruce Freeman

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THE DETERIORATION OF THE RELATIONSHIP BETWEEN FATHER AND MOTHER WAS A SUFFICIENT CHANGE IN CIRCUMSTANCES TO WARRANT AN INQUIRY RE: FATHER’S PETITION FOR A MODIFICATION OF CUSTODY; AFTER CONSIDERING THE MERITS, THE APPELLATE COURT AWARDED SOLE CUSTODY TO FATHER (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined father demonstrated a change in circumstance (deterioration of the relationship with mother, inability to communicate) sufficient to warrant an inquiry into whether the joint custody arrangement should be modified, and the record supported awarding father sole custody: … [T]he court had previously awarded joint custody to the parties […]

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FATHER WAS NOT SERVED WITH THE ORDER OF FACT-FINDING AND DISPOSITION IN THE MANNER PRESCRIBED BY FAMILY COURT ACT 1113 (FATHER WAS SERVED BY EMAIL) AND THEREFORE THE 30-DAY APPEAL DEADLINE DID NOT APPLY; FATHER’S STRIKING THE 14-YEAR-OLD CHILD ONCE DURING A MULTI-PERSON MELEE AFTER THE CHILD BROKE THE WINDOW OF FATHER’S CAR WITH A ROCK DID NOT CONSTITUTE NEGLECT (FOURTH DEPT). ​

The Fourth Department, reversing Family Court, determined: (1) Family Court did not follow the statutory procedure for serving father with the order of fact-finding and disposition and, therefore, father’s appeal was timely; and (2) father’s striking the child once during a multi-person melee, after the child threw a rock at father’s car, did not constitute […]

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A MOTION TO SET ASIDE A VERDICT PURSUANT TO CPL 330.30 (1) MUST BE BASED UPON MATTERS IN THE RECORD WHICH HAVE BEEN PRESERVED FOR APPEAL; A MOTION TO SET ASIDE A VERDICT PURSUANT TO CPL 330.30 (2) CAN BE BASED UPON JUROR MISCONDUCT OF WHICH THE DEFENDANT WAS NOT AWARE PRIOR TO THE VERDICT; BUT HERE THE DEFENSE WAS AWARE OF THE ALLEGED MISCONDUCT PRIOR TO THE VERDICT AND DID NOT OBJECT (FOURTH DEPT).

The Fourth Department explained that a motion to set aside a verdict pursuant to CPL 330.30 (1) or (2) cannot be based upon an issue the defense could have addressed (but did not) prior to the verdict. Although CPL 330.30 (2) allows a motion to set aside the verdict based upon juror conduct of which […]

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A MOTION TO SET ASIDE A JURY VERDICT PURSUANT TO CPL 330.30 (1) MUST BE BASED UPON MATTERS IN THE RECORD; I.E., ISSUES THAT CAN BE RAISED ON APPEAL; HERE THE MOTION WAS BASED ON MATTERS OUTSIDE THE RECORD AND SHOULD HAVE BEEN DENIED ON THAT GROUND (FOURTH DEPT).

The Fourth Department, reversing County Court’s granting of defendant’s CPL 330.30 (1) motion to set aside the jury verdict, determined the motion was improperly based upon matters outside the record. A CPL 330.30 (1) motion must be based upon issues which can be raised on appeal: Pursuant to CPL 330.30 (1), following the issuance of […]

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THE DEFENDANT, WHO WAS BEING TREATED AT THE HOSPITAL, WAS IN CUSTODY AND HAD NOT BEEN INFORMED OF HIS MIRANDA RIGHTS; THE DEFENDANT CALLED A POLICE OFFICER OVER AND SAID “I’M BEAT UP;” THE OFFICER THEN ASKED “WHAT HAPPENED?”; DEFENDANT’S ANSWER WAS NOT SPONTANEOUS AND SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT).

The Fourth Department, vacating defendant’s guilty plea, determined statements made by the defendant to a police officer while he was being treated at the hospital should have been suppressed. Although the initial statement “I’m beat up” was spontaneous, the statements made after the police officer asked “what happened?” were not spontaneous and were made while […]

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THERE WERE QUESTIONS OF FACT WHETHER THE SNOW PLOW WAS “ENGAGED IN HIGHWAY WORK” AT THE TIME OF THE TRAFFIC ACCIDENT; THEREFORE THERE WERE QUESTIONS OF FACT CONCERNING WHETHER THE HIGHER “RECKLESS DISREGARD” STANDARD OF CARE APPLIED; THE STATE’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing the Court of Claims, determined the state’s motion for summary judgment in this snow-plow traffic-accident case should not have been granted because there were questions of fact concerning whether the higher “reckless disregard” standard of care for snow plows was applicable. Although the “reckless disregard” standard may still apply where, as […]

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PURSUANT TO THE EMERGENCY OR DISASTER TREATMENT PROTECTION ACT (EDTPA), HEALTH CARE WORKERS WHO TREATED COVID-19 PATIENTS WERE IMMUNE FROM CIVIL LIABILITY; THE EDTPA HAS SINCE BEEN REPEALED; THE REPEAL SHOULD NOT BE APPLIED RETROACTIVELY; THE CAUSES OF ACTION ALLEGING IMPROPER TREATMENT FOR COVID-19 DURING THE TIME THE EDTPA WAS IN EFFECT MUST BE DISMISSED (FOURTH DEPT).

The Fourth Department determined the repeal of the COVID-19-related Emergency or Disaster Treatment Protection Act (EDTPA) (Public Health Law sections 3080-3082) should not be applied retroactively. Therefore, the immunity from civil liability provided by the EDTPA for health care workers who treated COVID-19 patients was in effect when the causes of action in the complaint […]

PLAINTIFF SLIPPED AND FELL CARRYING A TANK WHILE WALKING ON THE MUDDY BOTTOM OF AN EXCAVATED HOLE; THE BOTTOM OF THE HOLE WAS NOT A PASSAGEWAY (LABOR LAW 241(6)) AND THERE WAS NO ELEVATION-RELATED RISK (LABOR LAW 240(1); THOSE TWO CAUSES OF ACTION SHOULD HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendants’ motion for summary judgment dismissing the Labor Law 240(1) and 241(6) causes of action should have been granted. Plaintiff slipped and fell walking in a muddy, excavated hole. The bottom of the hole was not a passageway within the meaning of Labor Law 241(6) and there was […]

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THE COMPLAINT DID NOT STATE A CAUSE OF ACTION FOR FRAUDULENT INDUCEMENT BECAUSE IT DID NOT ADEQUATELY ALLEGE “OUT OF POCKET” DAMAGES (FIRST DEPT).

The First Department, reversing Supreme Court, determined the complaint did not state a cause of action for fraudulent inducement because it did not allege “out of pocket” damages: … [T]he complaint fails to plead a cause of action for fraudulent inducement because it does not adequately allege that plaintiff suffered any ascertainable out-of-pocket pecuniary damages […]

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