You are here: / Bruce Freeman

Entries by Bruce Freeman

, , ,

IN THIS MEDICAL MALPRACTICE/PUBLIC HEALTH LAW ACTION AGAINST A NURSING HOME, DEFENDANTS’ EXPERTS’ OPINIONS WERE NOT SUPPORTED BY THE SUBMISSION OF DECEDENT’S MEDICAL RECORDS, RENDERING THE OPINIONS SPECULATIVE; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the defendant nursing home’s motion for summary judgment in this medical malpractice, Public Health Law action should not have been granted. The defendant’s experts’ opinions were not supported by the submission of decedent’s medical records: … [D]efendant’s experts proffered opinions about decedent’s care at the nursing home facility […]

PLAINTIFF WAS IN A TRENCH WHEN HE WAS STRUCK BY THE BUCKET OF AN EXCAVATOR WHICH WAS ON THE EDGE OF THE TRENCH ABOVE HIM IN THIS LABOR LAW 240 (1), 241 (6) AND 200 ACTION; THERE WERE QUESTIONS OF FACT ABOUT WHETHER THE INJURY WAS THE RESULT OF THE USUAL AND ORDINARY DANGERS OF A CONSTRUCTION SITE AS OPPOSED TO A RISK CONTEMPLATED BY THE LABOR LAW (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined plaintiffs’ motion for summary judgment on the Labor Law 240 (1) and 241 (6) causes of action should not have been granted. Plaintiff was in a trench when he was struck by the bucket of an excavator which was on the edge of the trench above him: […]

, ,

BECAUSE OF UNAMBIGUOUS STATUTORY LANGUAGE, DEFENDANT’S MICHIGAN CONVICTION WAS DEEMED A “SEXUALLY VIOLENT OFFENSE” EVEN THOUGH THE SAME CONDUCT IN NEW YORK WOULD NOT QUALIFY AS A “SEXUALLY VIOLENT OFFENSE;” STRONG TWO-JUSTICE DISSENT (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, determined the result, while admittedly unfair, is required by unambiguous statutory language. For predicate felony purposes, a Michigan conviction was deemed a “sexually violent offense,” even though the same conduct would not constitute a “sexually violent offense” if committed in New York: A ” ‘[s]exually violent offender’ means […]

,

DEFENDANT MAY HAVE PLED GUILTY AND ACCEPTED A 16-YEAR SENTENCE IN MONORE COUNTY BECAUSE HE WAS ALREADY SENTENCED TO 14 – 24 YEARS FOR ANOTHER OFFENSE IN ONTARIO COUNTY; ON APPEAL THE ONTARIO COUNTY SENTENCE WAS REDUCED TO FOUR YEARS; MONROE COUNTY GUILTY PLEA VACATED (FOURTH DEPT).

The Fourth Department, vacating defendant’s guilty plea, determined defendant may have pled guilty and accepted a 16-year sentence in Monroe County because he was already serving a 14-24 year sentence for another offense in Ontario County. Subsequently, on appeal, the Fourth Department reduced the Ontario County sentence to four years: “The critical question is whether […]

PLAINTIFF FELL THROUGH A SKYLIGHT HOLE WHEN ATTEMPTING TO REMOVE PLYWOOD WHICH WAS COVERING THE HOLE; PLAINTIFF WAS PROPERLY AWARDED SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION (FOURTH DEPT).

The Fourth Department determined plaintiff’s motion for summary judgment on his Labor Law 240 (1) cause of action was properly granted. Plaintiff fell through a skylight hole while attempting to remove plywood which was covering the hole: Plaintiff submitted his own deposition testimony, in which he testified that, at the time of his injury, he […]

, ,

DEFENDANT’S AGREEMENT TO PURCHASE PLAINTIFF’S BUSINESS WAS NOT ENTWINED WITH AN EMPLOYMENT AGREEMENT BETWEEN PLAINTIFF AND DEFENDANT WHICH INCLUDED A COVENANT NOT TO COMPETE; THEREFORE PLAINTIFF’S ALLEGED BREACH OF THE COVENANT NOT TO COMPETE WAS NOT A DEFENSE TO DEFENDANT’S BREACH OF THE PURCHASE AND SALE AGREEMENT (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined an employment contract between plaintiff and defendant, which included a covenant not to compete, was not entwined with the separate sales agreement in which defendant promised to pay $200,000 for plaintiff’s business. Therefore plaintiff was entitled to summary judgment on the sales contract because defendant defaulted after […]

,

PLAINTIFF FAILED TO RAISE A QUESTION OF FACT WHETHER AN ALLEGED DEFECT IN THE ROAD WAS CAUSED BY DEFENDANT’S SPECIAL USE OF THE ROAD; TWO DISSENTERS DISAGREED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, over a two-justice dissent, determined defendant demonstrated it did not create a dangerous condition in the street by a special use. Plaintiff alleged defendant created the dangerous condition by storing heavy materials in the street. Plaintiff alleged a steel beam fell on his foot from a forklift when the […]

, ,

“REFUSING A BREATH TEST” IS NOT A COGNIZABLE OFFENSE; A CONVICTION IS THEREFORE A FUNDAMENTAL ERROR WHICH MUST BE CORRECTED ON APPEAL EVEN IF THE ISSUE IS NOT BRIEFED (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction of “refusing a breath test,” explained that it is not a cognizable offense. The court noted that it was obligated to correct this fundamental error which cannot be waived, even though the issue was not briefed on appeal: … [T]he purported traffic infraction to which defendant pleaded guilty under […]

, ,

IN THIS MODIFICATION OF CUSTODY PROCEEDING, FATHER PRESENTED SUFFICIENT EVIDENCE OF A CHANGE OF CIRCUMSTANCES TO WARRANT A HEARING ON THE BEST INTERESTS OF THE CHILD (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined respondent-father had presented sufficient evidence of a change in circumstances to warrant a hearing on the best interests of the child: Where … ” ‘a respondent moves to dismiss a modification proceeding at the conclusion of the petitioner’s proof, the court must accept as true the petitioner’s proof […]

, , ,

WHEN THE TERMS OF THE PLEA AGREEMENT WERE DISCUSSED BOTH TWO AND THREE-YEAR SENTENCES WERE MENTIONED; DEFENDANT WAS SENTENCED TO THREE YEARS; DEFENDANT’S GUILTY PLEA WAS THEREFORE NOT VOLUNTARY; THE ISSUE WAS NOT PRESERVED BY A MOTION AND WAS CONSIDERED IN THE INTEREST OF JUSTICE (THIRD DEPT).

The Third Department, vacating defendant’s guilty plea, determined defendant was not clearly informed of the sentence, rendering his plea involuntary. Although the issue was not preserved by a motion, the Third Department considered the appeal in the interest of justice: … [W]hen the terms of the plea agreement were placed on the record, it was […]

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 © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy