You are here: / Bruce Freeman

Entries by Bruce Freeman

,

WITH RESPECT TO THE IDENTIFICATION OF THE DEFENDANT BY A WITNESS TO THE CRIME: NO HEARING ON THE SUGGESTIVENESS OF COMMENTS MADE TO THE WITNESS BY THE POLICE WAS NECESSARY BECAUSE THE WITNESS WAS A LONG-TIME ACQUAINTANCE OF THE DEFENDANT (SECOND DEPT).

The Second Department noted that where a witness to the crime is a long-time acquaintance of the defendant, a hearing about the suggestiveness of comments made to the witness by the police is not necessary. In addition, any identification of the defendant by the witness from a photo array was “merely confirmatory:” “‘When a crime […]

,

THE PISTOL LICENSING SERVICE’S DENIAL OF PETITIONER’S APPLICATION FOR A PISTOL LICENSE HAD A RATIONAL BASIS AND SHOULD NOT HAVE BEEN ANNULLED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the Pistol License Section’s (PLS’s) denial of petitioner’s application for a pistol licenses had a rational basis and should not have been annulled: … [T]he denial of the petitioner’s application for a pistol license had a rational basis and was not arbitrary and capricious. The PLS’s investigation of […]

PLAINTIFF WAS STRUCK BY A TRAIN; THE “OPEN RUN” DEFENSE ALLOWS A TRAIN OPERATOR TO PROCEED NORMALLY AND ASSUME A PERSON SEEN AHEAD ON THE TRACKS WILL GET OUT OF THE WAY; THE TRIAL COURT PROPERLY INSTRUCTED THE JURY THAT THE “OPEN RUN” DEFENSE APPLIES WHETHER THE ACCIDENT HAPPENS IN DAYLIGHT OR, AS HERE, AT NIGHT (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Wooten, determined the jury instruction for the “open run” defense was proper. Plaintiff was lying near train tracks with one leg over the rails when he was struck by the defendant’s train at night. The “open run” defense allows the train operator to proceed normally when […]

, ,

THE FACT THAT COMPLAINANT TURNED 21 DURING THE FAMILY OFFENSE HEARING DID NOT DEPRIVE FAMILY COURT OF JURISDICTION; NOR DID THE INCAPACITY OF THE COMPLAINANT (SECOND DEPT).

The Second Department, reversing Family Court and remitting the matter, determined Family Court did lose jurisdiction over the family offense proceeding when complainant turned 21. The court noted that even if the complainant is incapacitated (but not judicially declared incompetent) Family Court has jurisdiction: In the context of a family offense proceeding, the question of […]

, ,

THE AFFIDAVIT SUPPORTING THE ADMISSIBILITY OF THE BUSINESS RECORDS OFFERED BY THE BANK IN THIS FORECLOSURE PROCEEDING DID NOT LAY A SUFFICIENT EVIDENTIARY FOUNDATION FOR THE RECORDS, RENDERING THE AFFIDAVIT INADMISSIBLE HEARSAY (SECOND DEPT).

The Second Department, reversing Supreme Court, determine the evidentiary foundation for the business records submitted by plaintiff bank (JPMorgan) in this foreclosure action was inadequate: JPMorgan submitted, among other things, the affidavit of Nathan Abelin, a document management specialist for FNMA’s loan servicer, Seturus, Inc. (hereinafter Seturus), who, based upon his review of business records, […]

, , , , ,

WHERE THE MINUTES OF A “QUALITY ASSURANCE” PEER-REVIEW COMMITTEE MEETING ASSESSING THE MEDICAL TREATMENT AFFORDED A PATIENT DO NOT IDENTIFY THE SPEAKERS, THE PARTY-STATEMENT EXCEPTION TO THE PUBLIC HEALTH LAW AND EDUCATION LAW PRIVILEGE APPLIES, MAKING ALL THE STATEMENTS BY UNIDENTIFIED SPEAKERS SUBJECT TO DISCOVERY BY THE PLAINTIFF IN THIS MEDICAL MALPRACTICE ACTION (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Christopher, determined the party-statement exception to the privilege afforded statements made in a peer-review “quality assurance” committee’s review of the medical treatment afforded a patient applied to all of the statements made by speakers who were not identified in the meeting minutes. The defendants, who were […]

, ,

SILENCE DOES NOT CONSTITUTE WAIVER; HERE THE NONPARTY DID NOT EXPRESSLY WAIVE THE COMMON INTEREST, WORK PRODUCT OR TRIAL PREPARATION PRIVILEGES WITH RESPECT TO SUBPOENAED DOCUMENTS (FIRST DEPT).

The First Department, reversing Supreme Court, determined silence did not constitute waiver of common interest, work product or trial preparation privileges with respect to subpoenaed documents: “Waiver is an intentional relinquishment of a known right and should not be lightly presumed” … . Accordingly, waiver should not be found absent “evidence from which a clear […]

, , ,

PLAINTIFF-STUDENT ALLEGED INJURY IN AN AFTERSCHOOL PROGRAM RUN BY TWO TEACHERS; THE DEPARTMENT OF EDUCATION IS IMMUNE FROM SUIT UNDER THE DOCTRINE OF GOVERNMENTAL IMMUNITY; THE PRINCIPAL’S APPROVAL OF THE AFTERSCHOOL PROGRAM WAS DISCRETIONARY AND NO SPECIAL DUTY WAS OWED PLAINTIFF (FIRST DEPT).

The First Department determined the NYC Department of Education (DOE) was immune from suit by a student who alleged injury in an afterschool program run two teachers (Polanish and Gallagher) called “Mind, Body & Sport” (MBS). The school principal’s approval of the program was a discretionary act and no special duty was owned plaintiff: The […]

, ,

THE OWNER OF THE OLD BRONX COURTHOUSE HAS A VALID CAUSE OF ACTION SEEKING AN EASEMENT BY NECESSITY OVER THE SIDEWALK/STREET ABUTTING THE COURTHOUSE, DESPITE THE “DEMAPPING” OF THE ABUTTING STREET AND THE CONVEYANCE OF THE “DEMAPPED” STREET TO THE DEFENDANT; THE ACTION IS NOT PRECLUDED BY THE STATUTE OF LIMITATIONS BECAUSE IT SEEKS TO QUIET TITLE TO THE OWNER’S LAND (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, in a full-fledged opinion by Justice Renwick, determined the plaintiff’s action claiming ownership of, or an easement over, the sidewalk/street area abutting plaintiff’s property (the old Bronx courthouse) was properly dismissed, with exception of the claim of an easement by necessity. The street abutting the courthouse had been […]

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