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Entries by Bruce Freeman

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THE FACTS THAT THE PARKED CAR IN WHICH DEFENDANT WAS SITTING WITH TWO OTHERS WAS IN A HIGH CRIME AREA AND WAS NOT RUNNING DID NOT PROVIDE THE POLICE WITH AN ARTICULABLE, CREDIBLE REASON TO APPROACH THE CAR; THE EVIDENCE SUBSEQUENTLY SEIZED AND THE STATEMENTS SUBSEQUENTLY MADE SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT).

The Fourth Department, vacating defendant’s guilty plea and dismissing the indictment, determined the police did not have an articulable. credible reason for approaching the parked car defendant was sitting in. Therefore the evidence subsequently seized and the statements subsequently made should have been suppressed: Where … “police officers approach a vehicle that is already parked […]

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THE CO-GUARDIAN SHOULD NOT HAVE BEEN REMOVED WITHOUT A HEARING; ALTHOUGH THE CO-GUARDIAN HAS A FELONY CONVICTION, SHE OBTAINED A CERTIFICATE OF RELIEF FROM DISABILITIES; THEREFORE, ALTHOUGH SURROGATE’S COURT CAN REMOVE THE CO-GUARDIAN IN THE EXERCISE OF DISCRETION, REMOVAL IS NOT AUTOMATIC (FOURTH DEPT).

The Fourth Department, reversing Surrogate’s Court, determined the co-guardians’ petition to remove co-guardian respondent Suzette Bonerb should not have been granted without a hearing. Petitioner and Suzette Bonerb were previously appointed co-guardians of their adult child, Whitney Bonerb, and co-trustees of the Whitney Bonerb Credit Shelter Supplemental Needs Trust. Although respondent Suzette had been convicted […]

QUESTIONS OF FACT ABOUT DEFENDANT’S KNOWLEDGE THE ICE AND SNOW WHERE PLAINTIFF SLIPPED AND FELL WAS A RECURRING CONDITION (CONSTRUCTIVE NOTICE), AS WELL AS DEFENDANT’S ROLE IN CREATING THE CONDITION (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined there were questions of fact about defendant’s (Ryco’s) “constructive notice” and “creation” of the snow and ice condition in the are where plaintiff slipped and fell: With respect to constructive notice, it is well settled that a “defendant who has actual knowledge of a recurring dangerous condition […]

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PLAINTIFF’S TITLE IX AND 42 USC 1983 CAUSES OF ACTION, BASED ON ALLEGATIONS OF SEXUAL ABUSE BY A TEACHER IN 1972 AND 1973, ARE TIME-BARRED (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined plaintiff’s Title IX and 42 USC 183 causes action, based upon allegations plaintiff was sexually abused by a teacher in 1972 – 1973, were time barred: “The federal civil rights statutes do not provide for a specific statute of limitations, establish rules regarding the tolling of the […]

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THE PROFESSIONAL EMPLOYEE AGREEMENT, WHICH PROVIDED FOR THE SHARING OF CONTINGENCY FEES FOR CASES RETAINED BY AN ATTORNEY WHO LEAVES THE FIRM, DID NOT VIOLATE ETHICS RULES AND SHOULD HAVE BEEN ENFORCED (FOURTH DEPT). ​

The Fourth Department, reversing (modifying) Supreme Court, determined the Professional Employee Agreement (Agreement), which provided for sharing contingency fees for cases retained by an attorney leaving the firm, did not violate ethics rules and should have been enforced: … [T]he Agreement did not violate rule 1.5 (g) of the Rules of Professional Conduct (22 NYCRR […]

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EVEN IF PLAINTIFF’S EXPERT’S AFFIDAVIT ARGUABLY RAISED A QUESTION OF FACT ABOUT A POTENTIALLY ACTIONABLE DELAY IN TREATMENT, THE AFFIDAVIT PRESENTED ONLY CONCLUSORY AND SPECULATIVE ASSERTIONS THAT EARLIER DETECTION AND TREATMENT WOULD HAVE HAD A DIFFERENT OUTCOME (PROXIMATE CAUSE) (FOURTH DEPT).

The Fourth Department, over a strong dissent, determined the expert affidavit submitted by plaintiff was conclusory on the issue of proximate cause and therefore could not overcome defendants’ motion for summary judgment. Karen S. Simko (plaintiff) suffered from Guillain-Barré Syndrome (GBS) and alleged defendants failed to timely diagnose and treat the condition: … [P]laintiffs’ theory […]

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A CHALLENGE TO THE VOLUNTARINESS OF A GUILTY PLEA SURVIVES A VALID WAIVER OF APPEAL; COUNTY COURT SHOULD HAVE HELD A HEARING ON DEFENDANT’S MOTION TO WITHDRAW THE GUILTY PLEA, MATTER REMITTED (FOURTH DEPT).

The Fourth Department, remitting the matter for a hearing, determined (1) a challenge to the voluntariness of a guilty survives a valid waiver of appeal, and (2) a hearing should have been held on defendant’s motion to withdraw the plea: Because defendant’s challenge to the voluntariness of her plea would survive even a valid waiver […]

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ITEMS SEIZED PURSUANT TO THE OVERBROAD SECTION OF THE SEARCH WARRANT, IF ANY, SHOULD HAVE BEEN SUPPRESSED, MATTER REMITTED FOR A RULING; THE SEARCH WARRANT APPLICATION PROVIDED PROBABLE CAUSE FOR THE SEARCH, NOTWITHSTANDING THE INCLUSION OF INFORMATION PROVIDED BY AN ANONYMOUS INFORMANT WHICH DID NOT SATISFY THE AGUILAR-SPINELLI TEST (FOURTH DEPT).

The Fourth Department determined a portion of the search warrant was overbroad and remitted the case for a ruling on what evidence, if any, should be suppressed because it was seized based on the overbroad language. The Fourth Department also determined information provided by an anonymous informant, which was included in the search warrant application, […]

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THE SECOND DEPARTMENT HAD REVERSED DEFENDANT’S MURDER CONVICTION, STATING IT WAS REVERSING ON WEIGHT OF THE EVIDENCE GROUNDS FOR THE SAME REASONS IT WAS REVERSING ON LEGAL SUFFICIENCY GROUNDS; THAT CONSTITUTED AN ERROR OF LAW REVIEWABLE BY THE COURT OF APPEALS; THE COURT OF APPEALS DETERMINED THERE WAS LEGALLY SUFFICIENT EVIDENCE TO SUPPORT CONVICTION; THE MATTER WAS REMITTED FOR PROPER ASSESSMENT OF THE WEIGHT OF THE EVIDENCE (CT APP).

The Court of Appeals, reversing People v Romualdo, 2020 NY Slip Op 06559 [188 AD3d 928], Second Dept 11-12-20, remitted the matter for a proper assessment of the weight of the evidence. The Court of Appeals has the authority to review a weight of the evidence determination when the appellate court failed to consider the […]

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