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Entries by Bruce Freeman

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PETITIONER, A PROBATIONARY EMPLOYEE AND THE ONLY FEMALE MANUAL-LABOR EMPLOYEE OF THE DEPARTMENT OF PUBLIC WORKS, DEMONSTRATED SHE WAS TERMINATED SOLELY BECAUSE OF HER GENDER; SUPREME COURT PROPERLY REINSTATED HER WITH BACK PAY (THIRD DEPT).

The Third Department determined petitioner, a probationary employee of the Department of Public Works (DPW), was terminated based solely upon her gender and was properly reinstated with back pay: Despite receiving two interim probationary reports that indicated her performance was satisfactory during the course of her employment, on April 3, 2018, petitioner was called to […]

JURORS WHO ENGAGED IN PREMATURE DELIBERATIONS SHOULD NOT HAVE BEEN DISCHARGED AS “GROSSLY UNQUALIFIED” ABSENT A FINDING THEY COULD NOT RENDER AN IMPARTIAL VERDICT (FIRST DEPT).

The First Department, reversing defendant’s conviction and ordering a new trial, determined two jurors, who engaged in premature deliberations by discussing the case on the subway, should not have been discharged, over a defense objection, as “grossly unqualified:” The record does not support the court’s discharge of a juror and an alternate, over defense objection, […]

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DOUBLE HEARSAY SUPPORTED THE DENIAL OF THE APPLICATION TO HAVE A REPORT MAINTAINED BY THE CENTRAL REGISTRY OF CHILD ABUSE AND MALTREATMENT AMENDED TO BE UNFOUNDED AND EXPUNGED (THIRD DEPT).

The Third Department determined that double hearsay supported the denial of petitioner’s application to have a report maintained by the Central Register of Child Abuse and Maltreatment amended to be unfounded and expunged: … [O]ur review of the record confirms that the double hearsay evidence introduced at the expungement hearing was sufficiently relevant and probative […]

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COMMENTS ALLEGEDLY MADE BY A JUROR DURING DELIBERATIONS EXPRESSING ETHNIC BIAS REQUIRED A HEARING AND FINDINGS WHETHER DEFENDANT’S CONSTITUTIONAL RIGHTS, BOTH FEDERAL AND STATE, WERE VIOLATED (FIRST DEPT).

The First Department remitted the matter for a hearing on defendant’s motion to vacate the judgment, Defendant’s motion included an affidavit from the jury foreperson alleging a juror exhibited ethnic bias during deliberations: The People consent to this matter being remanded for a hearing to determine whether ethnic bias tainted the jury’s deliberations as alleged […]

THE TRIAL COURT AS FACT-FINDER PROPERLY ADMITTED IN EVIDENCE A PHOTOCOPY OF THE LEASE AT THE HEART OF THE DISPUTE AS AN EXCEPTION TO THE BEST EVIDENCE RULE (FIRST DEPT).

The First Department determined a photocopy of a lease at the heart of the dispute was properly admitted in evidence pursuant to an exception to the best evidence rule: The best evidence rule “requires the production of an original writing where its contents are in dispute and sought to be proven” … . However, under […]

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IF A DEBT IS ACCELERATED, THE SIX-YEAR STATUTE OF LIMITATIONS FOR RECOVERY OF THE DEBT IS TRIGGERED; IF THE DEBT IS NOT ACCELERATED, THE INSTALLMENTS DUE WITHIN THE SIX YEARS PRIOR TO COMMENCING SUIT ARE RECOVERABLE (THIRD DEPT).

The Third Department determined that, because the debt was never accelerated, recovery of the installments due during the six years prior to commencement of the action is not time-barred: The claim alleges that the [defendants] stopped making monthly payments as required by the 1988 agreement in December 2003, 15 years before the commencement of this […]

DEFENDANT’S MOTION TO COMPEL PLAINTIFF, WHO SUED UNDER THE NAME MARGARET DOE, TO AMEND THE CAPTION TO INCLUDE HER LEGAL NAME SHOULD NOT HAVE BEEN GRANTED; PLAINTIFF PRESENTED EVIDENCE SUING UNDER HER OWN NAME WOULD HAVE SEVERE MENTAL-HEALTH CONSEQUENCES (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant’s motion to compel plaintiff to amend the pleadings to include her legal name (the caption reads “Margaret Doe”) should not have been granted: The presumption in favor of open trials and the potential prejudice to defendant did not outweigh plaintiff’s privacy interest … . In addition to […]

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THE MOTION TO DISMISS THE ARBITRATION IN THIS ACTION ALLEGING NONPAYMENT FOR CONSTRUCTION WORK SHOULD NOT HAVE BEEN GRANTED; THE ARBITRATOR RULES ON PAYMENT FOR LABOR AND MATERIALS; COURTS RULE ON THE VALIDITY OF MECHANIC’S LIENS (FIRST DEPT).

The First Department noted that an arbitrator’s ruling on the value of labor an materials is conclusive for all parties, but it is not conclusive on the validity of the underlying mechanic’s lien itself. Here the contactor, Flowcon, filed mechanic’s lens alleging defendant, Andiva, failed to pay for construction work on Andiva’s townhouse. The construction […]

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PLAINTIFF IN A LABOR LAW 240 (1) AND 241 (6) ACTION NEED NOT SUBMIT AN AFFIDAVIT TO MAKE OUT A PRIMA FACIE CASE; THE HEARSAY STATEMENTS REFERENCING OR ATTRIBUTED TO PLAINTIFF DID NOT RAISE A QUESTION OF FACT (FIRST DEPT).

The First Department, reversing Supreme Court and granting plaintiffs’ summary judgment motion on the Labor Law 240 (1) and 241 (6) causes of action, determined: (1) plaintiff need not submit an affidavit to make out a prima facie case; and (2) defendant’s reliance on hearsay, including statements referenced in the certified medical records, did not […]

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PETITIONER’S FOIL REQUEST FOR A POLICE MANUAL WAS AT FIRST DENIED, BUT WAS GRANTED AFTER THE ARTICLE 78 PROCEEDING WAS BROUGHT; RESPONDENT DID NOT HAVE A GOOD REASON FOR FIRST DENYING THE REQUEST; PETITIONER “SUBSTANTIALLY PREVAILED” AND WAS ENTITLED TO ATTORNEY’S FEES (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined petitioner in this FOIL proceeding “substantially prevailed” and was therefore entitled to attorney’s fees: Upon petitioner’s FOIL request seeking the contents of a medical screening manual used by the New York City Police Department, respondents, relying on Public Officers Law § 87(2)(d) among other sections of the […]

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