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Entries by Bruce Freeman

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THE SENTENCING COURT SHOULD NOT HAVE ENHANCED DEFENDANT’S SENTENCE BASED ON A POSITIVE DRUG TEST; DEFENDANT DID NOT VIOLATE ANY OF THE TERMS OF THE PLEA AGREEMENT AS IT WAS DESCRIBED ON THE RECORD BY THE COURT; DEFENDANT SUCCESSFULLY COMPLETED THE RESIDENTIAL DRUG TREATMENT PROGRAM, WHICH IS WHAT THE PLEA AGREEMENT CALLED FOR (SECOND DEPT).

The Second Department determined Supreme Court should not have imposed an enhanced sentence because there was no showing that defendant had violated any condition of the plea agreement: It was undisputed that the defendant successfully completed the 90-day in-patient residential program, which was the only specific program identified by the court at the plea proceeding. […]

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ALTHOUGH THE ARRESTING OFFICER OBSERVED SOME INTERACTIONS WITH OTHERS BY THE DEFENDANT AT A LOCATION KNOWN FOR DRUG ACTIVITY, THE OFFICER DID NOT SEE ANY PROPERTY OR CURRENCY CHANGE HANDS AND DID NOT FIND ANY DRUGS OR CURRENCY ON THE DEFENDANT OR THE TWO MEN WITH HIM ON THE STREET; THERE WAS NO PROBABLE CAUSE FOR DEFENDANT’S ARREST; THE HEROIN SUBSEQUENTLY FOUND IN THE POLICE CAR AND DEFENDANT’S STATEMENT HE HAD “DITCHED” THE DRUGS IN THE CAR SHOULD HAVE BEEN SUPPRESSED (SECOND DEPT).

The Second Department determined defendant’s motion to suppress the heroin found in back seat of a police car and his statement that he had “ditched” the drugs in the car should have been suppressed because the arresting officer did not have probable cause at the time of defendant’s arrest. The officer had observed defendant engage […]

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IN THIS CASE INVOLVING A FATAL CAR ACCIDENT WHEN DEFENDANT WAS APPARENTLY “RACING” THE OTHER DRIVER, THE EVIDENCE PRESENTED TO THE GRAND JURY WAS LEGALLY SUFFICIENT TO SUPPORT THE MANSLAUGHTER SECOND DEGREE CHARGE; THE INDICTMENT SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing County Court’s dismissal of the indictment, determined the evidence of manslaughter second degree presented to the grand jury was legally sufficient: … [V]iewing the evidence in the light most favorable to the People, we find that it was legally sufficient to support the charges of manslaughter in the second degree … […]

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IN THIS MEDIDCAL MALPRACTICE ACTION, THE HOSPITAL-DEFENDANTS’ EXPERT’S AFFIDAVIT DID NOT ADDRESS ALL OF THE MALPRACTICE ALLEGATIONS AND OFFERED CONSLUSORY ASSERTIONS; THEREFORE THE HOSPITAL’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant hospital’s (Lutheran’s) expert affidavit did not address all of plaintiff’s allegations of Dr. Barabe’s medical malpractice and therefore the hospital should not have been awarded summary judgment: … [T]he Lutheran defendants’ submissions were insufficient to establish Barabe’s prima facie entitlement to judgment as a matter of law […]

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IN THIS FORECLOSURE ACTION, DEFENDANT DID NOT WAIVE THE LACK OF JURISDICTION DEFENSE BY PARTICIPATING IN THE MANDATORY SETTLEMENT CONFERENCE AND WAS ENTITLED TO A HEARING ON WHETHER SHE WAS PROPERLY SERVED WITH THE SUMMONS AND COMPLAINT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant in this foreclosure action did not waive the lack of jurisdiction defense and demonstrated entitlement to a hearing on whether she was properly served: … [B]y participating in the mandatory settlement foreclosure conference and subsequently contacting the plaintiff for settlement purposes, the defendant did not demonstrate a […]

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FAMILY COURT SHOULD HAVE HELD A HEARING ON PLAINTIFF’S MOTION TO HOLD DEFENDANT IN CIVIL CONTEMPT FOR FAILURE TO PAY CHILD SUPPORT AND DEFENDANT’S PETITION TO REDUCE THE CHILD SUPPORT PAYMENTS; FAMILY COURT HAD GRANTED DEFENDANT’S PETITION AND DENIED PLAINTIFF’S MOTION WITHOUT HOLDING A HEARING (SECOND DEPT). ​

The Second Department, reversing Family Court, determined a hearing was necessary on plaintiff’s motion to hold defendant in civil contempt for failure to pay child support and on defendant’s petition to reduce his child support payments: … [T]he parties’ submissions presented issues of fact with regard to the defendant’s actual income … , which the […]

ALTHOUGH THE INSURER DID NOT RECEIVE NOTICE OF THE CLAIM UNTIL 23 MONTHS AFTER THE CAR ACCIDENT, IT WAS NOT PREJUDICED BY THE DELAY AND DID NOT COMMENCE A TIMELY INVESTIGATION OF THE CLAIM; THE DISCLAIMER OF COVERAGE WAS INVALID (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the insurer (Utica) did not make a timely disclaimer of coverage in this car accident case. Although the insurer did not receive notice of the claim from the insured (Kassie) until 23 months after the accident, it was not prejudiced by that delay and failed to promptly investigate […]

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THE BANK IN THIS FORECLOSURE ACTION DID NOT PRESENT SUFFICIENT EVIDENCE OF DEFENDANTS’ DEFAULT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank did not demonstrate the defendants’ default in this foreclosure action: “Among other things, a plaintiff can establish a default by submission of an affidavit from a person having personal knowledge of the facts, or other evidence in admissible form”… . Although Smith [plaintiff’s vice president] averred […]

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FATHER’S PETITION FOR A MODIFICATION OF CUSTODY, REQUESTING AN AWARD OF SOLE CUSTODY, SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Family Court, over a dissent, in a decision too comprehensive to fairly summarize here, determined father’s petition for a modification of custody (awarding him sole custody) should not have been granted: … Family Court’s determination that there was a change of circumstances since the issuance of the prior custody order such […]

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FATHER ALLEGED CHANGES IN HIS WORK SCHEDULE ALLOWED MORE TIME FOR PARENTAL ACCESS WITH THE CHILD; A HEARING SHOULD HAVE BEEN ORDERED ON FATHER’S MODIFICATION PETITION (SECOND DEPT).

The Second Department, reversing Family Court, determined father had submitted sufficient evidence to warrant a hearing on his petition to modify the custody or parental access arrangement: … [F]ather stated that his probationary employment period had since ended, and his schedule was more consistent, and he was off from work on Saturdays and Sundays. Given […]

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