You are here: / Bruce Freeman

Entries by Bruce Freeman

, , , , ,

THE “EVEN YEAR ELECTION LAW” (EYEL) IS CONSTITUTIONAL, SUPREME COURT REVERSED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined that the Even Year Election Law (EYEL) does not violate the New York Constitution or the United States Constitution. The decision is complex and cannot be fairly summarized here: The EYEL amended provisions of County Law § 400, Town Law § 80, Village Law § 17-1703-a (4), and […]

, ,

PLAINTIFFS’ EXPERT’S AFFIDAVIT DID NOT ADDRESS SPECIFIC ASSERTIONS BY DEFENDANT’S EXPERT RE: PROXIMATE CAUSE IN THIS MEDICAL MALPRACTICE ACTION; THEREFORE DEFENDANT WAS ENTITLED TO SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the plaintiffs’ expert’s affidavit in opposition to defendant’s motion for summary judgment in this medical malpractice action did not address all the proximate-cause issues railed by defendant’s expert, specifically the plaintiff’s failure to return for a follow-up visited after being treated in the emergency room at Elmhurst Hospital […]

, ,

DEFENDANT’S EXPERT AFFIDAVIT IN THIS MEDICAL MALPRACTICE ACTION DID NOT ADDRESS SPECIFIC ALLEGATIONS ASSERTED BY PLAINTIFFS; THEREFORE DEFENDANT WAS NOT ENTITLED TO SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant surgeon was not entitled to summary judgment in this medical malpractice action. The defendant’s expert affidavit did not address specific allegations of negligence asserted by plaintiffs: … [T]he defendants failed to establish .. that Ashraf [defendant] did not depart from the applicable standard of care in treating […]

, ,

PLAINTIFF’S REQUEST TO PROCEED UNDER THE PSEUDONYM “JANE DOE” SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s request to proceed using the pseudonym “Jane Doe” should have been granted. Plaintiff is apparently suing her former employer, a charter school, contesting her termination, which apparently was based upon a video depicting plaintiff masturbating: As to the merits, Supreme Court improvidently exercised its discretion in denying […]

, ,

THE PORT AUTHORITY DEMONSTRATED IT WAS NOT LIABLE FOR PLAINTIFF’S DECEDENT’S DEATH BY SUICIDE; PLAINTIFF’S DECEDENT CLIMBED OVER A FOUR-FOOT-TALL PEDESTRIAN RAILING AND JUMPED OFF THE GEORGE WASHINGTON BRIDGE (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Pitt-Burke, over a dissent, affirming summary judgment dismissing the complaint, determined the Port Authority was not liable for the plaintiff’s decedent’s death by suicide.  Plaintiff’s decedent climbed over the four-foot-tall pedestrian railing and jumped off the George Washington Bridge (GWB). Plaintiff alleged the Port Authority was […]

, ,

THE DOCTRINE OF ABATEMENT AB INITIO REMAINS VALID; WHERE A DEFENDANT DIES BEFORE THE CONVICTION BECOMES FINAL THROUGH THE APPELLATE PROCESS VACATION OF THE CONVICTION AND DISMISSAL OF THE INDICTMENT IS REQUIRED; HERE BOTH DEFENDANTS HAD BEEN CONVICTED AND DIED BEFORE SENTENCING (FIRST DEPT).

The First Department affirmed Supreme Court in two consolidated cases in which the People unsuccessfully argued the doctrine of abatement ab initio should no longer be followed. The doctrine provides that where a defendant dies before the appellate process is complete the conviction is vacated and the indictment dismissed: In these consolidated cases (People v […]

, ,

THERE WERE QUESTIONS OF FACT WHETHER A RAISED MANHOLE COVER, EXPOSED WHEN THE ROAD SURFACE AROUND THE MANHOLE WAS MILLED IN PREPARATION FOR REPAVING, CONSTITUTED A DANGEROUS CONDITION CREATED BY THE CITY AND WHETHER THE CONDITION WAS OPEN AND OBVIOUS (FIRST DEPT).

The First Department, reversing Supreme Court and reinstating the complaint, determined there were questions of fact whether the raised manhole cover constituted a dangerous condition, and whether the condition was open and obvious. Plaintiff was a passenger in a car which struck a raised manhole cover. In preparation for repaving, the existing road surface was […]

, , ,

THE CASE WAS REMITTED TO SUPREME COURT TO PROCURE A RULING ON WHETHER DEFENDANT SHOULD BE AFFORDED YOUTHFUL OFFENDER STATUS; YET DEFENSE COUNSEL FOCUSED ON DEFENDANT’S SENTENCING AS AN ADULT AND ESSENTIALLY IGNORED THE “YOUTHFUL OFFENDER” ISSUE; DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL (FOURTH DEPT).

The Fourth Department, reserving decision on the appeal and remitting the matter again, determined defendant did not receive effective assistance of counsel. The sole purpose for initially remitting the matter to Supreme Court was to procure a ruling on whether defendant should be afforded youthful offender status. But defense counsel focused only on defendant’s sentencing […]

, ,

DUE TO AN APPARENT DRAFTING ERROR, A 16-YEAR SENTENCE IS VALID FOR A FIRST TIME VIOLENT FELONY OFFENDER BUT IS ILLEGAL (EXCESSIVE) FOR A SECOND VIOLENT FELONY OFFENDER; THE FACIALLY ILLEGAL SENTENCE MUST BE VACATED; THE ERROR NEED NOT BE PRESERVED (FOURTH DEPT).

The Fourth Department, vacating defendant’s sentence, determined the sentence was illegal due to an apparent drafting error. The court noted the error need not be preserved for appeal: … [T]he 16-year determinate sentence of imprisonment imposed by County Court is illegal. Had defendant been sentenced as a first-time violent felony offender, the court could have […]

, , ,

THE QUESTIONING OF DEFENDANT CONTINUED DESPITE HER REPEATED STATEMENTS THAT SHE HAD NOTHING ELSE TO SAY AND WAS DONE TALKING; THE MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED; NEW TRIAL ORDERED (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction and ordering a new trial, determined the defendant had unequivocally and repeated stated that she was “done talking” and had “nothing else to say” during her interrogation by investigators. The interrogators continued questioning her as if they hadn’t heard her assert her right to remain silent: … [W]hile being […]

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 © 2025 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy