You are here: / Bruce Freeman

Entries by Bruce Freeman

, , ,

CONFLICTING EXPERT OPINIONS IN THIS MEDICAL MALPRACTICE ACTION REQUIRED DENIAL OF DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT; THE FACT THAT THE ISSUE WHETHER ASPIRIN SHOULD HAVE BEEN ADMINISTERED AS TREATMENT FOR STROKE WAS RAISED IN A DEPOSITION (BUT NOT IN THE COMPLAINT OR BILL OF PARTICULARS) ALLOWED PLAINTIFF TO RAISE THE ISSUE IN OPPOSITION TO SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ motions for summary judgment in this medical malpractice action should not have been granted. The was conflicting expert-opinion evidence about whether plaintiff should have been administered aspirin as treatment for a stroke. Although the aspirin-issue was first raised in opposition to defendants’ motions, the issue had been […]

, ,

THE ACTION, WHICH STEMMED FROM PLAINTIFF’S BEING DROPPED IN THE DELIVERY ROOM IMMEDIATELY AFTER BIRTH, SOUNDED IN MEDICAL MALPRACTICE, NOT NEGLIGENCE, AND WAS THEREFORE TIME-BARRED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s action, which stemmed from being dropped in the delivery room immediately after birth in 1999, sounded in medical malpractice, not negligence, and was therefore time-barred: CPLR 208 provides that the statute of limitations is tolled throughout the period of infancy, but limits such toll to 10 years […]

, ,

HERE DEFENDANT, WHO PLED GUILTY TO BURGLARY AS A SEXUALLY MOTIVATED FELONY, ATTEMPTED TO CHALLENGE HIS CERTIFICATION AS A SEX OFFENDER, PRONOUNCED AT SENTENCING, IN THE SORA RISK-LEVEL ASSESSMENT PROCEEDING; THE SEX OFFENDER CERTIFICATION WAS DEEMED TO BE PART OF THE JUDGMENT OF CONVICTION WHICH CAN ONLY BE CHALLENGED ON DIRECT APPEAL (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Rivera, determined that the defendant could not challenge his certification as a sex offender at the SORA risk-level-assessment proceeding. The sex-offender certification is part of the judgment of conviction which must be challenged on direct appeal. Here the defendant pled guilty to burglary as a sexually […]

, , ,

THE DENIAL OF DEFENDANT’S REQUEST FOR A ONE-DAY ADJOURNMENT TO ALLOW HIS DAUGHTER TO TRAVEL TO COURT TO TESTIFY, COUPLED WITH THE RELATED GRANT OF THE PEOPLE’S REQUEST FOR A MISSING-WITNESS JURY INSTRUCTION, DEPRIVED DEFENDANT OF A FAIR TRIAL (SECOND DEPT).

The Second Department, reversing defendant’s conviction in the interest of justice, determined the judge’s denial of defendant’s request for a one-day adjournment to allow defendant’s daughter to travel to court to testimony, and the grant of the People’s related request for a missing witness jury instruction, deprived defendant of a fair trial: “[W]hen the witness […]

,

MARIJUANA AND GRAVITY-KNIFE CONVICTIONS VACATED IN THE INTEREST OF JUSTICE BECAUSE THE “OFFENSES” HAVE BEEN DECRIMINALIZED (SECOND DEPT).

The Second Department vacated defendant’s marijuana and gravity-knife convictions because the “offenses” had been decriminalized: The defendant’s conviction of criminal possession of marihuana in the third degree “‘became a nullity by operation of law, independently of any appeal, and without requiring any action by this [c]ourt,’” pursuant to CPL 160.50(5) … . Consequently, the appeal […]

THE SMALL CONCRETE PEBBLES UPON WHICH PLAINTIFF ALLEGEDLY SLIPPED DID NOT CONSTITUTE A “SLIPPERY CONDITION” WITHIN THE MEANING OF THE INDUSTRIAL CODE AND WERE NOT IN A “PASSAGEWAY” WITHIN THE MEANING OF THE INDUSTRIAL CODE; THE LABOR LAW 241(6) ACTION SHOULD HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined the Industrial Code did not apply to the small concrete pebbles on which plaintiff allegedly slipped when attempting to install a heavy glass divider: When plaintiff stepped forward to place the glass into the track, he stepped onto “minute” pebbles near the track. His right foot slipped […]

,

THE CITY PROPERLY AMENDED ITS CHARTER DELETING THE PROVISIONS REQUIRING THE CITY TO ENFORCE PAYMENT OF DELINQUENT PROPERTY TAXES, IMPOSING THAT DUTY ON THE COUNTY (THIRD DEPT).

The Third Department, over a two-justice dissent, determined the city properly amended its charter by deleting the provisions requiring the city to enforce payment of delinquent property taxes, thereby imposing that duty upon the county: By adopting Local Law No. 2, the City amended its charter by deleting the provisions requiring the City to enforce […]

,

PLAINTIFF’S EVIDENCE OF THE CAUSE OF THE SLIP AND FALL, A RAISED SIDEWALK FLAG IDENTIFIED IN A PHOTOGRAPH, WAS SUFFICIENT TO DEFEAT DEFENDANT’S MOTION FOR SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff sufficiently identified the cause of the slip and fall. Defendant’s motion for summary judgment should not have been granted: … [T]he defendant failed to establish, prima facie, that the plaintiff was unable to identify the cause of his fall without resort to speculation. In support of his […]

, ,

ALTHOUGH DEFENDANT WAS PROPERLY DETAINED, ONCE THE PAT-DOWN SEARCH REVEALED DEFENDANT DID NOT HAVE A WEAPON THE POLICE WERE NOT JUSTIFIED IN REMOVING THE (STOLEN) WALLET FROM DEFENDANT’S POCKET AND SEARCHING IT; THE ERROR WAS NOT HARMLESS UNDER THE STANDARD FOR CONSTITUTIONAL ERROR (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion to suppress the wallet seized in the search of his person should have been granted. The related robbery convictions were reversed and a new trial on those counts was ordered. Defendant fled from the scene of the mugging and was properly detained by the police. However, […]

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy