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Entries by Bruce Freeman

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THERE WAS NO PROOF IN THE RECORD SUPPORTING THE FINDING THAT THE MISSOURI CONVICTION WAS THE EQUIVALENT OF A NEW YORK FELONY; THEREFORE THE RISK-LEVEL ASSESSMENT WAS REDUCED BY 10 POINTS (THIRD DEPT).

The Third Department, reversing County Court and remitting the matter, determined there was no proof in the record to support the finding that a Missouri conviction was the equivalent of a New York felony. The 15 points assessed for the foreign conviction was reduced to 5 points: The Missouri statute under which defendant was convicted […]

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CLAIMANT’S UNEMPLOYMENT INSURANCE BENEFITS PROPERLY REDUCED TO ZERO BECAUSE CLAIMANT’S PENSION EXCEEDED THE AMOUNT OF THE BENEFITS (THIRD DEPT).

The Third Department determined the amount of unemployment insurance benefits for claimant, a professional violinist, was properly reduced to zero based upon claimant’s pension: Consistent with the provisions of Labor Law § 600 (1) (a), the benefit rate of a claimant who is receiving a governmental or other pension “shall be reduced . . . […]

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DEFENDANTS DID NOT DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF THE WET LOADING DOCK WHERE PLAINTIFF SLIPPED AND FELL; GENERAL OBLIGATIONS LAW 5-322.1 (1) APPLIES ONLY TO NEGLIGENT MAINTENANCE ASSOCIATED WITH THE INTEGRITY OF A BUILDING, NOT TO CLEANING SERVICES (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants in this slip and fall case did not demonstrate a lack of constructive notice of the wet loading dock. Therefore defendants’ motion for summary judgment should not have been granted. As to the action against the maintenance company charged with keeping the loading dock clean (ABM), General […]

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DEFENDANT WAS NOT INFORMED HIS GUILTY PLEA COULD RESULT IN DEPORTATION; THE ISSUE NEED NOT BE PRESERVED FOR APPEAL; MATTER REMITTED TO GIVE DEFENDANT THE OPPORTUNITY TO MOVE TO WITHDRAW HIS GUILTY PLEA (SECOND DEPT).

The Second Department, remitting the matter to Supreme Court, determined defendant should be given the opportunity to withdraw his guilty plea because he was not informed of the possibility of deportation. The issue was not subject to the preservation requirement for appeal: … [T]he defendant’s contention that his due process rights were violated due to […]

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THE DENIAL OF THE FOIL REQUEST DID NOT ADVISE PETITIONER OF THE AVAILABILITY OF AN ADMINSTRATIVE APPEAL; THEREFORE SUPREME COURT SHOULD NOT HAVE DISMISSED THE ARTICLE 78 PETITION FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the Article 78 petition seeking the production of documents should not have been dismissed on the ground petitioner failed to exhaust administrative remedies. When the FOIL request was denied the denial did not advise petitioner of the availability of an administrative appeal: Public Officers Law § 89(3)(a) and […]

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THE COMPLAINT SUFFICIENTTLY ALLEGED A BREACH OF THE COVENANT OF GOOD FAITH CAUSE OF ACTION IN THIS INSURANCE COVERAGE DISPUTE; THE “IMPLIED COVENANT” CAUSE OF ACTION ALLEGED CONDUCT DIFFERENT FROM THE BREACH OF CONTRACT CAUSE OF ACTION AND WAS THEREFORE NOT DUPLICATIVE; SUPREME COURT IMPROPERLY REDUCED THE ATTORNEYS’ FEES AWARDS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the breach of the implied covenant of good faith and fair dealing cause of action in this insurance coverage dispute should not have been dismissed. The court noted that the “breach of the implied covenant” cause of action was not based on the same conduct as the breach […]

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PLAINTIFF HAD NO MEMORY OF EVENTS BEYOND WALKING TOWARD THE BUS AT A BUS STOP; SHE SUFFERED A CRUSHED FOOT; THE MOTION TO SET ASIDE THE PLAINTIFF’S VERDICT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the motion to set aside the plaintiff’s verdict in this pedestrian-bus accident case should have been granted. Plaintiff had no memory of the incident beyond walking a couple of feet toward the bus at a bus stop. She suffered a crushed foot. But there was simply no evidence […]

PLAINTIFF ALLEGEDLY SLIPPED AND FELL AFTER STEPPING ON A BOTTLE CAP; PLAINTIFF’S LABOR LAW 241 (6) AND 200 CAUSES OF ACTION SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the Labor Law 241(6) and 200 causes of action should not have been dismissed. Plaintiff alleged he stepped on a bottle cap which caused him to slip and fall: The record presents an issue of fact as to whether the bottle cap that caused the injured plaintiff’s slip-and-fall […]

THE JURORS IN THIS ATTEMPTED ROBBERY CASE SAW AN INTERNET VIDEO OF DEFENDANT’S CODEFENDANT VIOLENTLY CAUSING A MAN’S DEATH; THE VIDEO HAD NOT BE INTRODUCED OR MENTIONED AT TRIAL; SUPREME COURT SHOULD HAVE GRANTED THE MOTION TO SET ASIDE THE VERDICT (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined the defense motion to set aside the verdict based upon juror misconduct should have been granted. The trial court denied the motion after an extensive hearing. The jurors had seen an Internet video of defendant’s codefendant, Lopez, violently causing a man’s death: “CPL 330.30 (2) authorizes a court […]

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THE 1ST DEPARTMENT, OVERRULING PRECEDENT AND JOINING THE OTHER DEPARTMENTS, DETERMINED INDIVIDUAL MUNICIPAL EMPLOYEES NEED NOT BE NAMED IN A NOTICE OF CLAIM (FIRST DEPT).

The First Department, reversing Supreme Court and overruling precedent, in a full-fledged opinion by Justice Scarpulla, determined municipal employees need not be named in a notice of claim. Plaintiff brought negligence, false arrest and false imprisonment causes of action against NYC alleging inhumane treatment by officers at Rikers Island: The City moved to dismiss plaintiff’s […]

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