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Entries by Bruce Freeman

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THE STIPULATION ACKNOWLEDGING THE PRIOR DEBT DEMONSTRATED THAT THE DEED TRANSFERRING THE PROPERTY CREATED ONLY A SECURITY INTEREST AND DID NOT TRANSFER LEGAL TITLE (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the transfer of property by deed did not transfer title, but rather was a security interest for a loan (a mortgage): … [T]he … deed never conveyed legal title to the plaintiff, but merely created a security interest in the subject property. “A deed conveying real property, […]

QUESTIONS OF FACT ABOUT WHETHER PLAINTIFF WAS INSTRUCTED TO WORK ONLY ON GROUND LEVEL AND NOT TO USE STILTS, AND WHETHER THE SOLE PROXIMATE CAUSE OF THE ACCIDENT WAS PLAINTIFF’S CONTINUED USE OF THE STILTS AFTER HE FELT THEM BECOME UNSTABLE, PRECLUDED SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined there were questions of fact which precluded summary judgment on plaintiff’s Labor Law 240 (1) cause of action. Apparently, plaintiff fell while using stilts. There was a question of fact whether plaintiff’s boss told him to work only on ground level without stilts. And there was a […]

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THE VALIDITY OF A GUILTY PLEA IS NOT PROPERLY RAISED IN THE COURT OF APPEALS AFTER THE AFFIRMANCE OF A LEGAL SENTENCE BY THE APPELLATE DIVISION; WHERE THE SENTENCE IS LEGAL, AN EXCESSIVE-SENTENCE CLAIM IS BEYOND THE SCOPE OF THE COURT OF APPEALS (CT APP).

The Court of Appeals, over an extensive two-judge dissenting opinion, determined (1) the validity of a guilty plea is not properly raised in the Court of Appeals after the appellate division has affirmed the defendant’s legal sentence, and (2) where a sentence is legal, an excessive-sentence claim is beyond the scope of the Court of […]

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HAPPY, AN ELEPHANT IN THE BRONX ZOO, IS NOT A “PERSON” ENTITLED TO THE PROTECTION OF A WRIT OF HABEAS CORPUS; THE PETITION SOUGHT HAPPY’S TRANSFER TO AN ELEPHANT SANCTUARY; TWO DISSENTS (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, over two dissenting opinions, determined an elephant at the Bronx Zoo (Happy) was not entitled to the protection of a writ of habeas corpus. The petition sought Happy’s transfer from the zoo to an elephant sanctuary: For centuries, the common law writ of habeas […]

EVEN THOUGH THE STATE ASSEMBLY REDISTRICTING MAP WAS DECLARED INVALID BY THE COURT OF APPEALS IN APRIL 2022, THE MAP WILL BE USED UNTIL THE GENERAL ELECTION IN 2024 (FIRST DEPT).

The First Department determined the state assembly redistricting mag declared invalid by the Court of Appeals on April 27, 2022, shall be used in the upcoming 2022 elections and any new map will not be used before the 2024 general election: … [T]he February 2022 map is invalid, based on its procedural infirmity as previously […]

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THE EVIDENCE OF “PHYSICAL INJURY” WAS LEGALLY INSUFFICIENT; ASSAULT SECOND CONVICTION REVERSED (FOURTH DEPT).

The Fourth Department, reversing defendant’s assault second conviction, determined the evidence the police officer sustained “physical injury” was legally insufficient: ” ‘Physical injury’ means impairment of physical condition or substantial pain” (Penal Law § 10.00 [9]). Although pain is subjective, the Court of Appeals has cautioned that “the Legislature did not intend a wholly subjective […]

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THE SEXUAL ABUSE ALLEGATIONS FROM THE 1990’S WERE NOT SUFFICIENTLY SIMILAR TO THE CHARGED OFFENSES AND THEREFORE DID NOT MEET THE “MODUS OPERANDI” CRITERIA UNDER MOLINEUX TO PROVE IDENTITY; NEW TRIAL ORDERED (FOURTH DEPT).

The Fourth Department, reversing defendant’s convictions and ordering a new trial, determined the Molineux evidence allowed by County Court did not meet the “modus operandi” criteria: Before trial, County Court granted the People’s motion seeking to introduce testimony that defendant sexually abused his eldest son in the 1990s, on the ground that the earlier, uncharged […]

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THE PROPERTY-INSURANCE EXCLUSION FOR “DETERIORATION” APPLIED TO THE BULGING WALL CAUSED BY THE DETERIORATION OF BRICKS, PRECLUDING COVERAGE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the “deterioration” exclusion in the property insurance policy applied to a bulging wall, precluding coverage: Defendant met its initial burden on its motion by establishing as a matter of law that plaintiff’s loss is not covered under the policy because it resulted from “deterioration,” which condition was specifically […]

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A FIREFIGHTER INJURED ON THE JOB RETURNED TO THE JOB BUT COULD NOT WORK THE 10 TO 24 HOUR SHIFTS WHICH ARE THE “REGULAR DUTIES” OF A FIREFIGHTER; BECAUSE SHE WAS NOT OFFERED THE FULL-TIME EQUIVALENT OF THE SHORTER SHIFTS OR LIGHT-DUTY WORK, SHE WAS ENITLTED TO GENERAL MUNICIPAL LAW 207-A BENEFITS (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined petitioner, a firefighter who had injured her shoulder on the job, was entitled to General Municipal Law 207-a benefits: A firefighter seeking section 207-a benefits must show “that his or her injury or illness results from the performance of his or her duties and that he or she […]

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