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Entries by Bruce Freeman

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ALTHOUGH DEFENDANT WAS CONVICTED OF AN ARMED FELONY, THE JUDGE SHOULD HAVE CONSIDERED WHETHER DEFENDANT IS ELIGIBLE FOR YOUTHFUL OFFENDER TREATMENT (CT APP).

The Court of Appeals, reversing the Appellate Division, determined the judge should have determined whether defendant, who had been convicted of an armed felony, was eligible for youthful offender treatment: “[W]hen a defendant has been convicted of an armed felony . . . and the only barrier to his or her youthful offender eligibility is […]

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THE CONSENT OF BOTH PARTIES IS NOT REQUIRED FOR THE DISPLAY OF STATUTORY TEXT ON A VISUALIZER WHEN A JUDGE RESPONDS TO A JURY’S REQUEST FOR SUPPLEMENTAL INSTRUCTION (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Garcia, determined the consent of the parties is not required for the display of the relevant statutory text on a visualizer during the judge’s response to a jury’s request for supplemental instruction. Consent of the parties is required for allowing the jury to be provided […]

PUBLIC HEALTH LAW SECTION 18 (2) (e) DOES NOT CREATE A PRIVATE RIGHT OF ACTION FOR THE VIOLATION OF THE REQUIREMENT THAT NO MORE THAN $ .75 PER PAGE CAN BE CHARGED FOR MEDICAL RECORDS (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Singas, over a concurrence, determined there is no private right of action for a violation of Public Health Law section 18 (2) (e), which limits the charge for copies of medical records to $ .75 per page. Defendant charged plaintiff $1.50 per page: Applying the […]

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EXPERT TESTIMONY ON FALSE CONFESSION AND CROSS-RACIAL IDENDITIFICATION/MISIDENTIFICATION PROPERLY PRECLUDED; THREE-JUDGE DISSENT (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, over a three-judge dissent, determined the trial judge, after a Frye hearing, properly precluded expert testimony of Dr. Redlich on false confessions. In addition, the trial court properly precluded expert testimony on cross-racial identification/misidentification: On this record, the trial court did not abuse its […]

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PROOF THE ELEVATOR DOOR MALFUNCTIONED WHEN PLAINTIFF ATTEMPTED TO ENTER THE ELEVATOR DID NOT SUPPORT A PRODUCTS LIABILITY CAUSE OF ACTION (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined plaintiff’s proof demonstrated that the elevator door malfunctioned at the time plaintiff attempted to enter the elevator. A malfunction is not enough to support a products liability cause of action: Plaintiff Patricia Booth was injured when she was knocked to the ground when the doors to an elevator […]

THE FACT THAT OSHA REQUIRES PROTECTION ONLY FOR FALLS MORE THAN SIX FEET WAS IRRELEVANT; PLAINTIFF, WHO FELL FROM AN ELEVATED PLANK, WAS ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE OF ACTION (FIRST DEPT).

The First Department determined plaintiff’s fall from a plank, even if the fall was less than six feet, entitled him to summary judgment on the Labor Law 240 (1) cause of action: Even if, as [defendant] contends, plaintiff fell less than six feet, that does not render the statute inapplicable … , [Defendant’s] claimed compliance […]

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PLAINTIFFS DEMONSTRATED A DEMAND ON THE BOARD OF DIRECTORS TO PURSUE A DERIVATIVE ACTION WAS FUTILE; THE COMPLAINT ADEQUATELY ALLEGED BREACH OF FIDUCIARY DUTY, A CLAIM FOR WHICH NO DAMAGES NEED BE ALLEGED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the requirement that a demand on the board of directors to pursue a derivative action was futile and therefore is excused. In addition, the complaint adequately alleged a breach of fiduciary duty: Plaintiffs properly alleged demand futility as required under Business Corporation Law § 626 (c) by asserting […]

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PLAINTIFFS WERE ENTITLED TO SUMMARY JUDGMENT ON THEIR MINIMUM WAGE, OVERTIME PAY, SPREAD-OF-HOURS PAY AND WAGE THEFT PREVENTION ACT CAUSES OF ACTION, INCLUDING LIQUIDATED DAMAGES, PREJUDGMENT INTEREST AND ATTORNEYS’ FEES (FIRST DEPT).

The First Department, reversing Supreme Court, determined the motion court should not have denied plaintiff’s summary judgment motion and, sua sponte, dismissed the complaint in this action alleging “violations of minimum wage, overtime pay and spread-of-hours pay under the Labor Law and violations of the Wage Theft Prevention Act (WTPA) …” . The First Department […]

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PURSUANT TO THE DOCTRINE OF LACHES, THE DEFENDANT CITY WAS NOT ENTITLED TO THE LOWER 5.76% INTEREST RATE ON THE MULTIMILLION DOLLAR JUDGMENT; THE TRIAL JUDGE PROPERLY IMPOSED THE 9% INTEREST RATE PURSUANT TO CPLR 5004 (FIRST DEPT).

The First Department reduced the multimillion dollar damages award in this lawsuit by a student severely burned during a chemistry demonstration at his public high school. The trial judge properly imposed a 9% interest rate on the judgment because the defendant city was late (laches) in seeking the lower interest rate (5.75%) authorized by law: […]

CLAIMANT’S REQUEST FOR RECLASSIFICATION BASED UPON A CHANGE IN CONDITION FILED AFTER THE EXPIRATION OF CLAIMANT’S CAPPED INDEMNITY BENEFITS WAS NOT UNTIMELY (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined claimant’s request for reclassification based upon a change in condition was not untimely: “The Board’s unilateral position that a permanently partially disabled claimant must seek reclassification prior to the exhaustion of his or her permanent partial disability award runs in direct contravention to the plain language […]

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