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Entries by Bruce Freeman

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THE SUPERIOR COURT INFORMATION (SCI) DID NOT CHARGE DEFENDANT WITH CREATING AND FAILING TO REGISTER AN INTERNET IDENTIFIER, WHICH IS A VIOLATION OF THE CORRECTION LAW; INSTEAD, THE SCI CHARGED DEFENDANT WITH FAILURE TO REGISTER A FACEBOOK ACCOUNT, WHICH DOES NOT VIOLATE THE CORRECTION LAW (THIRD DEPT).

The Third Department, reversing defendant’s conviction and dismissing the superior court information (SCI) determined that the SCI did not charge defendant with an violation of Correction Law section 168-a (18). The statute requires a sex offender to register the creation of an “Internet identifier.” But the SCI charged defendant with creating a Facebook account, which […]

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DEFENDANT DEMONSTRATED IT DID NOT HAVE CONSTRUCTIVE NOTICE OF THE WET CONDITION WHICH ALLEGEDLY CAUSED PLAINTIFF’S SLIP AND FALL (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant demonstrated it did not have constructive notice of the wet condition which allegedly caused plaintiff’s slip and fall: Defendant demonstrated prima facie that it did not have actual or constructive notice of the dangerous condition by producing evidence of its maintenance activities on the day of the […]

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THE CERTIFICATION OF ACKNOWLEDGMENT IS PRIMA FACIE EVIDENCE THE DECEDENT EXECUTED THE CONTRACT, BUT THAT EVIDENCE CREATES ONLY A REBUTTABLE PRESUMPTION; PLAINTIFF PRESENTED SUFFICIENT EVIDENCE TO RAISE A QUESTION OF FACT WHETHER DECEDENT SIGNED THE AGREEMENT (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined the certification of acknowledgment is prima facie proof the contract was executed by decedent but the certification only creates a rebuttable presumption: … [T]he agreement was notarized by defendant Rosemary Bellini. “Certification of the acknowledgment or proof of a writing . . . in the manner prescribed […]

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DEFENDANT’S FAILURE TO COMPLY WITH DISCOVERY ORDERS WAS WILLFUL AND CONTUMACIOUS WARRANTING STRIKING ITS ANSWER (FIRST DEPT).

The First Department, reversing Supreme Court, determined the defendant’s (Motors’s) failure to turn over records despite four court orders and defendant’s attempt to mislead plaintiff about its compliance with the discovery requirements warranted striking defendant’s answer: We find that Motors’s failure to produce these records was willful and contumacious, in view of the fact that […]

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THE JUDGE DID NOT READ THE JURY NOTE IN ITS ENTIRETY TO THE PARTIES AND THE JUDGE’S PARAPHRASE OF THE CONTENTS OMITTED SIGNIFICANT ASPECTS OF IT; THE FACT THAT THE JURY ANNOUNCED IT HAD REACHED A VERDICT BEFORE THE NOTE WAS CALLED TO THE PARTIES’ ATTENTION DID NOT MATTER; THE MODE OF PROCEEDINGS ERROR REQUIRED REVERSAL (FIRST DEPT).

The First Department, reversing defendant’s conviction and ordering a new trial, determined the judge’s failure to read the entire note from the jury to the parties was a mode of proceedings error. The fact that the jury announced it had reached a verdict before the note was read was not determinative: The trial court’s failure […]

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THE PLAINTIFF DID NOT DEMONSTRATE HIS DECEASED BROTHER MADE AN INTER VIVOS GIFT OF THE COOPERATIVE APARTMENT TO PLAINTIFF; THE STATUTE OF FRAUDS APPLIES AND THERE WAS NO WRITING; AND THE FAILURE TO FOLLOW THE TRANSFER PROVISIONS OF THE PROPRIETARY LEASE NEGATED A FINDING OF DONATIVE INTENT (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff did not demonstrate his deceased brother made an inter vivos gift of a cooperative apartment to plaintiff. The alleged transfer of the property was subject to the Statute of Frauds and there was no writing memorializing the alleged gift: Defendant established that there was no valid inter […]

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THE SENTENCING JUDGE IMPROPERLY SPECULATED AND CONSIDERED UNCHARGED CRIMES; SENTENCE VACATED (SECOND DEPT). ​

The Second Department, vacating defendant’s sentence, determined the sentencing judge improperly speculated and considered uncharged crimes: … [C]ertain remarks made by the County Court demonstrate that, in imposing sentence, it improperly speculated and considered that the defendant had committed additional similar crimes for which she had not been apprehended. Consequently, the defendant must be resentenced […]

THE DISORDERLY CONDUCT AND VIOLENT CONDUCT MISBEHAVIOR DETERMINATIONS WERE NOT SUPPORTED BY SUBSTANTIAL EVIDENCE (SECOND DEPT). ​

The Second Department, reversing (modifying) the superintendent’s determination, held that the disorderly conduct and violent conduct determinations were not supported by substantial evidence: … [T]he determination that the petitioner was guilty of violating rule 100.15, which provides that an incarcerated individual shall not engage in unauthorized sparring, wrestling, body-punching, or other forms of disorderly conduct, […]

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THE MOTION TO CONSOLIDATE THE TRIALS OF TWO ACTIONS STEMMING FROM THE SAME FIRE, WHERE ONE PARTY WAS BOTH A DEFENDANT AND A PLAINTIFF, SHOULD HAVE BEEN GRANTED; ANY PREJUDICE RESULTING FROM THE JURY’S KNOWLEDGE OF THE EXISTENCE OF INSURANCE (ONE OF THE ACTIONS IS AGAINST AN INSURER) CAN BE HANDLED WITH JURY INSTRUCTIONS (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, determined the motion to consolidate the trials of two actions stemming from the same fire which damages two adjoining properties should have been granted. The court noted that one party is both a plaintiff and a defendant: Although a motion pursuant to CPLR 602(a) is addressed to the […]

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