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Entries by Bruce Freeman

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THE PHOTO ARRAY WAS UNDULY SUGGESTIVE; THE VICTIM WAS FIXATED ON THE UNIQUE WHITE AND BLACK PATTERN ON THE SHIRT WORN BY THE ROBBER; IN THE PHOTO ARRAY A SHIRT WITH A BLACK AND WHITE DESIGN WAS VISIBLE IN THE DEFENDANT’S PHOTO, BUT THE FILLERS WERE ALL WEARING SOLID COLOR SHIRTS (SECOND DEPT).

The First Department, reversing defendant’s conviction and ordering a new trial, determined the photo array from which the victim identified defendant was unduly suggestive: The hearing court should have granted defendant’s motion to suppress the victim’s identification of defendant in a photo array. The photo array was unduly suggestive because defendant was the only person […]

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FAMILY COURT SHOULD HAVE MADE THE FINDING THAT PETITIONER’S REUNIFICATION WITH HER FATHER IN THE IVORY COAST WAS NOT VIABLE TO ENABLE HER TO APPLY FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) AND REMAIN IN THE US (SECOND DEPT).

The First Department, reversing (modifying) Family Court, determined Family Court should have found reunification with petitioner’s father in the Ivory Coast was not viable. Petitioner, 16 years old, sought findings from Family Court which would allow her to apply for special immigrant juvenile status (SIJS) and remain in the United States: Family Court erred in […]

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IN THIS FORECLOSURE ACTION, A PARTY WHO DID NOT SIGN THE NOTE BUT DID SIGN THE MORTGAGE IS A “BORROWER” ENTITLED TO RPAPL 1304 NOTICE; PLAINTIFF BANK’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that a borrower, Ellen Weininger, who signed the mortgage but not the note, was entitled to notice of foreclosure pursuant to RPAPL 1304: … [I]t is undisputed that the plaintiff failed to serve Ellen Weininger with timely notice pursuant to RPAPL 1304, and, contrary to the plaintiff’s contention, […]

HERE THE DEFENDANTS RAISED PLAINTIFF’S SIGNING A RELEASE AS AN AFFIRMATIVE DEFENSE; THE COMPLAINT ALONG WITH PLAINTIFF’S AFFIRMATION ADEQUATELY ALLLEGED THE RELEASE WAS THE PRODUCT OF OVERREACHING OR UNFAIR CIRCUMSTANCES AND THEREFORE WAS NOT A BAR TO CERTAIN CAUSES OF ACTION (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined plaintiff adequately alleged a release (raised by defendants as an affirmative defense) was the product of overreaching and therefore did not bar certain causes of action: … [T]he amended complaint, along with the affirmation plaintiff submitted in opposition to defendants’ motion, sufficiently alleges that the release was […]

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PLAINTIFFS RAISED QUESTIONS OF FACT (1) WHETHER THE POLICE ACTED IN RECKLESS DISREGARD OF THE SAFETY OF OTHERS DURING A HIGH-SPEED CHASE AND IN FAILING TO NOTIFY THE DISPATCHER OF THE CHASE, AND (2) WHETHER THE CHASE WAS A PROXIMATE OR CONCURRENT CAUSE OF PLAINTFFS’ ACCIDENT (THERE WAS NO CONTACT WITH EITHER VEHICLE INVOLVED IN THE CHASE) (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, in a full-fledged opinion by Justice Kapnick, determined plaintiffs raised questions of fact about whether the police acted in reckless disregard of the safety of others during a high-speed chase, and whether the chase of the BMW driven by Llewellyn was a proximate or concurrent cause of the […]

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BECAUSE THE ISSUE WAS NOT PRESERVED BY OBJECTION, THE MAJORITY DID NOT CONSIDER WHETHER COUNTY COURT MADE A PROPER INQUIRY OF A JUROR WHO, DURING DELIBERATIONS, FOR THE FIRST TIME, REVEALED SHE WAS A RAPE VICTIM; DEFENDANT WAS CHARGED WITH RAPE; THE DISSENTING JUDGE WOULD HAVE CONSIDERED THE ISSUE IN THE INTEREST OF JUSTICE AND ORDERED A NEW TRIAL (THIRD DEPT).

The Third Department refused to consider whether County Court properly handled an “outburst by a juror during deliberations” because the issue was not preserved by objection. The dissenting justice would have considered the issue in the interest of justice and ordered a new trial: From the dissent: The foreperson said it best — “how did […]

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THE MAJORITY REFUSED TO CONSIDER WHETHER COUNTY COURT PROPERLY DISCHARGED A JUROR WHO FAILED TO APPEAR BECAUSE THE ISSUE WAS NOT PRESERVED BY OBJECTION; TWO DISSENTERS WOULD HAVE CONSIDERED THE ISSUE IN THE INTEREST OF JUSTICE AND ORDERED A NEW TRIAL (THIRD DEPT).

The Third Department refused to consider whether the court properly discharged a juror because the issue was not preserved by objection. The two dissenting justices would have ordered a new trial in the interest of justice: From the dissent: If a juror is unable to continue serving due to an illness, “the court shall make […]

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HERE, IN THIS FOIL PROCEEDING, THE REQUESTED DOCUMENTS WERE ULTIMATELY PROVIDED AFTER AN INITIAL REFUSAL RENDERING THE ACTION MOOT; THE PETITIONER’S REQUEST FOR AN AWARD OF ATTORNEY’S FEES, HOWEVER, WAS NOT PRECLUDED (THIRD DEPT).

The Third Department determined the award of attorney’s fees for a FOIL request is not precluded when the underlying action is rendered moot because the requested documents were ultimately provided (after an initial refusal): The fact that the proceeding has been rendered moot by the disclosure of the documents does not … preclude petitioner’s request […]

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PLAINTIFF’S ATTORNEY WAS NOT AWARE OF COVID-RELATED PROCEDURAL CHANGES FOR CONDUCTING COMPLIANCE CONFERENCES; PLAINTIFF’S MOTION TO VACATE DISMISSAL OF THE ACTION SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the COVID-related law office failure was an adequate excuse and plaintiff’s motion to vacate the dismissal of the action should have been granted: Supreme Court improvidently exercised its discretion in denying plaintiffs’ motion to vacate the dismissal, as plaintiffs showed both a reasonable excuse for their default and […]

ITHACA’S FEE SCHEDULE FOR PERMITS ALLOWING THE CLOSURE OF STREETS AND SIDEWALKS FOR CONSTRUCTION ON PRIVATE PROPERTY IS VALID, SUPREME COURT REVERSED (THIRD DEPT).

The Third Department, reversing Supreme Court, over a dissent, determined the respondent city demonstrated its fee schedule for permits allowing the closure of streets, sidewalks and parking spaces during construction on private property was valid. The decision is too detailed and comprehensive to be fairly summarized here: … City officials had a rational basis for […]

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