You are here: / Bruce Freeman

Entries by Bruce Freeman

QUESTION OF FACT WHETHER PLAINTFF SLIPPED AND FELL ON ICE OR SNOW IN AN AREA WHICH HAD BEEN CLEARED SUCH THAT IT CONSTITUTED A “PASSAGEWAY” WITHIN THE MEANING OF THE INDUSTRIAL CODE RE: THIS LABOR LAW 241(6) ACTION (FIRST DEPT).

The First Department determined there was a question of fact in this Labor Law 241(6) action about whether the area where plaintiff slipped and fell on ice or snow was a “passageway” within the meaning of the Industrial Code: This personal injury action stems from injuries sustained by plaintiff when he allegedly slipped and fell […]

A STAIRWAY CAN BE A “PASSAGEWAY” WITHIN THE MEANING OF THE INDUSTRIAL CODE; THE LABOR LAW 241(6) CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined that a stairway where plaintiff fell could be a “passageway” within the meaning of the Industrial Code. Therefore the Labor Law 241(6) cause of action should not have been dismissed: For purposes of the applicability of Industrial Code (12 NYCRR) § 23-1.7(d), a staircase may constitute a […]

, ,

CRIMINAL SALE OF A CONTROLLED SUBSTANCE FIRST DEGREE AND THE RELATED CONSPIRACY CONVICTIONS WERE AGAINST THE WEIGHT OF THE EVIDENCE (THIRD DEPT).

The Third Department determined the criminal sale of a controlled substance first degree and the related conspiracy convictions were against the weight of the evidence: In a weight of the evidence review, we first determine whether, based on all of the credible evidence, a different finding would have been unreasonable, and, if not, we then […]

CLAIMANT’S EXPERT PROVIDED SUFFICIENT EVIDENCE OF A CAUSAL RELATIONSHIP BETWEEN CLAIMANT FIREFIGHTER’S LUNG CANCER AND EXPOSURE TO TOXINS AT GROUND ZERO, WORKERS’ COMPENSATION BOARD REVERSED (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined the evidence supported a finding that claimant firefighter’s lung cancer and death were caused by exposure to toxins at Ground Zero: The Board found the opinion of Ploss [claimant’s expert] to be incredible in part because he did not “cite to any studies or other evidence […]

THE WIND BLOWING A DOOR SHUT ON PETITIONER POLICE OFFICER’S HAND DID NOT CONSTITUTE AN “ACCIDENT” WITHIN THE MEANING OF THE RETIREMENT AND SOCIAL SECURITY LAW (THIRD DEPT).

The Third Department, over a two-justice dissent, determined petitioner police officer’s injury caused by wind slamming a door on her hand was not an “accident” entitling her to disability benefits: … “[W]hen determining whether a precipitating event was unexpected, [the Comptroller] and courts may … consider whether the injured person had direct knowledge of the […]

,

THE UNLAWFUL SURVEILLANCE CONVICTION DID NOT INVOLVE “SEXUAL CONTACT” AS DEFINED BY THE PENAL LAW; THEREFORE THE 20 POINT ASSESSMENT FOR “SEXUAL CONTACT” WAS ERROR (THIRD DEPT).

The Third Department, reversing (modifying) County Court, determined the risk factors requiring “sexual contact” and a “prior felony or sex crime” were not supported: County Court erred in assessing points under risk factors 4 and 10. The assessment of points under risk factor 4 is warranted where a defendant has engaged in “either (i) two […]

BECAUSE PLAINTIFF ALLEGED THE ORAL CONTRACT WAS ENFORCEABLE EVEN IF THE TRIGGERING EVENT OCCURRED AFTER A YEAR, THE CONTRACT WAS WITHIN THE STATUTE OF FRAUDS AND THEREFORE MUST IN BE WRITING (FIRST DEPT).

The First Department determined the oral contract was within the statute of frauds because it was not susceptible of performance within one year. Plaintiff alleged he was entitled to 50% of the placement fee received by defendant for job candidates he referred to defendant, even if placement was made after a year: The alleged oral […]

, ,

IN THIS ARTICLE 78 PROCEEDING, NO APPEAL LIES FROM A JUDGE’S DECLINING TO SIGN AN ORDER TO SHOW CAUSE; THE ONLY REMEDY IS A MOTION TO VACATE THE FINAL JUDGMENT (FIRST DEPT).

The First Department, in this Article 78 proceeding, noted that no appeal lies from a judge’s declining to sign an order to show cause. The only remedy is a motion to vacate the final judgment: No appeal lies from an order declining to sign an order to show cause, since it is an ex parte […]

,

THE BANK WHICH COMMENCED THE 2006 FORECLOSURE HAD ALREADY ASSIGNED THE NOTE AND MORTGAGE AND DID NOT HAVE STANDING TO FORECLOSE; THEREFORE THE STATUTE OF LIMITATIONS DID NOT START RUNNING IN 2006; THE DISSENT DISAGREED (SECOND DEPT).

The Second Department, over an extensive dissent, determined that the bank (Option One) which commenced foreclosure proceedings in 2006 did not have standing to do so because it had already assigned the note and mortgage (to Residential). Therefore the six-year statute of limitations did not start to run in 2006. The dissent argued Option One, […]

,

THE MAJORITY CONCLUDED THE INTERVENTION BY THE TRIAL JUDGE DID NOT DEPRIVE DEFENDANT OF A FAIR TRIAL; STRONG TW0-JUSTICE DISSENT (SECOND DEPT).

The Second Department, over an extensive two-justice dissent, affirmed defendant’s murder conviction. The majority noted that some of the trial judge’s remarks would have been better left unsaid, but held the judge did not intervene excessively. The dissent disagreed: … [W]hile many of the Supreme Court’s interventions were proper attempts to clarify testimony and facilitate […]

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