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Entries by Bruce Freeman

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THE CONSENT-TO-SEARCH PROBATION CONDITION WAS NOT INDIVIDUALLY TAILORED TO THE OFFENSE AND SHOULD NOT HAVE BEEN IMPOSED; IT WAS NOT NECESSARY TO PRESERVE THE ERROR FOR APPEAL AND APPEAL WAS NOT PROHIBITED BY THE DEFENDANT’S WAIVER OF HIS RIGHT TO APPEAL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined there was no justification for the “consent-to-search” probation condition. Defendant stole a cab driver’s cell phone and pled guilty to attempted assault. The court noted it was not necessary to preserve the error for appeal and appeal was not prohibited by the waiver of appeal: The probation department […]

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A SEX OFFENDER CERTIFICATION IS NOT PART OF A DEFENDANT’S SENTENCE; THEREFORE THE CERTIFICATION CANNOT BE SET ASIDE PURSUANT TO A MOTION TO SET ASIDE THE SENTENCE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s certification as a sex offender was not part of his sentence. Therefore the certification could not be set aside pursuant to CPL 440.20: Prior to the defendant’s release from prison, the defendant moved, inter alia, pursuant to CPL 440.20 to vacate his certification as a sex offender […]

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CONFLICTING ACCOUNTS OF WHAT THE POLICE OFFICERS SAW WHEN THEY APPROACHED THE VAN IN WHICH DEFENDANT WAS A PASSENGER FAILED TO DEMONSTRATE PROBABLE CAUSE FOR THE SEARCH OF THE VAN; THE WEAPON SEIZED FROM THE VAN SHOULD HAVE BEEN SUPPRESSED; DEFENDANT’S POSSESSION OF A WEAPON CONVICTION REVERSED (SECOND DEPT).

The Second Department, reversing the possession of a weapon conviction, determined defendant’s motion to suppress a handgun found in a van in which defendant was a passenger should have been granted. Inconsistencies in the police officer’s accounts of what the officers saw when they approached the van rendered the People’s proof at the suppression hearing […]

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PLAINTIFF RAISED QUESTIONS OF FACT ABOUT WHETHER SHE WAS THE VICTIM OF GENDER DISCRIMINATION; UPON HER RETURN FROM MATERNITY LEAVE SHE WAS TOLD HER POSITION HAD BEEN ELIMINATED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined plaintiff’s gender-discrimination action against defendant employer should not have been dismissed. Upon returning from maternity leave, plaintiff was informed her management-level position had been eliminated and replaced by a position for which she was not qualified. Defendant did offer plaintiff a job as a temporary social worker at […]

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THE BANK DID NOT COMPLY WITH THE “ONE ENVELOPE” RULE FOR THE MAILING OF THE RPAPL 1304 NOTICE OF DEFAULT IN THIS FORECLOSURE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank violated the notice requirements of RPAPL 1304 by including other documents in the envelope containing the notice of default in this foreclosure action: RPAPL 1304(1) provides that “at least ninety days before a lender, an assignee or a mortgage loan servicer commences legal action against the […]

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THE BUSINESS RECORDS REFERRED TO IN THE AFFIDAVIT SUBMITTED TO SHOW THE BANK’S COMPLIANCE WITH THE RPAPL 1304 NOTICE REQUIREMENTS IN THIS FORECLOSURE ACTION WERE NOT ATTACHED, RENDERING THE AFFIDAVIT INADMISSIBLE HEARSAY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank did not demonstrate compliance with the notice requirements of RPAPL 1304 in this foreclosure action. The failure to attached the business records referred to in the affidavit purporting to demonstrate compliance rendered the affidavit inadmissible hearsay: Although the plaintiff submitted copies of the 90-day notices purportedly […]

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THE CONDITIONAL ORDER OF DISMISSAL DID NOT MEET THE REQUIREMENTS OF CPLR 3216 BECAUSE ISSUE WAS NEVER JOINED IN THIS FORECLOSURE ACTION; THE ACTION SHOULD NOT HAVE BEEN DISMISSED FOR FAILURE TO PROSECUTE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the conditional order of dismissal of this foreclosure action did not meet the requirements of CPLR 3216 because issue was never joined. Therefore the action should not have been dismissed: “‘A court may not dismiss an action based on neglect to prosecute unless the CPLR 3216 statutory preconditions […]

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REMARKS BY THE JUDGE AND DEFENDANT’S COUNSEL PREJUDICED THE JURY IN THIS MEDICAL MALPRACTICE CASE; ALTHOUGH NOT PRESERVED, THE ISSUE WAS CONSIDERED ON APPEAL IN THE INTEREST OF JUSTICE; DEFENSE VERDICT SET ASIDE (SECOND DEPT).

The Second Department, reversing the defendants’ verdict in this medical malpractice action and considering the appeal in the interest of justice, determined the trial judge and a defendant’s attorney made comments which prejudiced the jury: … [T]he Supreme Court’s repeated prejudicial comments and interjections prejudiced the plaintiff. For example, the court barred the plaintiff’s counsel […]

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THERE WAS NO OBJECTIVE EVIDENCE TO SUPPORT PLAINTIFF’S ALLEGATION THAT THE CITY BUS STOPPED “VIOLENTLY,” CAUSING HER TO FALL; THE PLAINTIFF’S VERDICT SHOULD HAVE BEEN SET ASIDE AS AGAINST THE WEIGHT OF THE EVICENCE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant Transit Authority’s motion to set aside the plaintiff’s verdict in this bus-passenger-injury case should have been granted. Plaintiff’s testimony that the bus stopped “violently,” causing her to fall, was not supported by any objective evidence: … [V]iewing the evidence in the light most favorable to the […]

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DEFENDANT DID NOT DEMONSTRATE IT WAS NOT RESPONSIBLE, PURSUANT TO THE TOWN CODE, FOR MAINTENANCE OF THE AREA OF THE SIDEWALK WHERE PLAINTIFF TRIPPED OVER A PROTRUDING BOLT; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the Metropolitan Transit Authority (MTA), which had a station in the vicinity of where plaintiff tripped over a bolt protruding from the sidewalk, was not entitled to summary judgment in this slip and fall case. A town ordinance required abutting property owners to maintain the sidewalk and […]

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