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Entries by Bruce Freeman

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SUPREME COURT PROPERLY CONSOLIDATED TWO INDICTMENTS, CRITERIA EXPLAINED; THERE WAS A COMPREHENSIVE DISSENT (FOURTH DEPT).

The Fourth Department, affirming the convictions, determined Supreme Court properly consolidated two indictments. A comprehensive dissent disagreed: … [T]he court properly exercised its discretion in granting consolidation pursuant to CPL 200.20 (2) (b) because there is significant common evidence supporting both indictments. Most importantly, the same weapon was involved in the events underlying both indictments, […]

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DEFENDANT MOVED TO VACATE HIS CONVICTION ARGUING HIS ATTORNEY WAS INEFFECTIVE FOR WAIVING AN INTERPRETER; COUNTY COURT SHOULD HAVE HELD A HEARING ON THE MOTION; TWO-JUSTICE DISSENT (FOURTH DEPT).

The Fourth Department, reversing County Court, over a two-justice dissent. determined County Court should have held a hearing on defendant’s motion to vacate his conviction. Defendant argued defense attorney’s waiver of an interpreter constituted ineffective assistance. Defendant’s ineffective-assistance argument on direct appeal had been rejected, but the motion to vacate properly raised the waiver of […]

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THE PURPOSE AND REACH OF THE FORECLOSURE ABUSE PREVENTION ACT (FAPA) EXPLAINED IN SOME DETAIL (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Reynolds Fitzgerald, determined that the Foreclosure Abuse Prevention Act (FAPA) applied and required the dismissal of the complaint on statute of limitations grounds: … FAPA’s enactment amended numerous CPLR provisions as well as other statutes, including: CPLR 213 (4) (a), stating that “[i]n any action [upon […]

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THERE IS NO BRIGHT-LINE MINIMUM HEIGHT DIFFERENTIAL FOR AN ELEVATION HAZARD PURSUANT TO LABOR LAW 240(1); HERE A FALL OF 10.5 TO 20 INCHES FROM A STACK OF PALLETS WARRANTED SUMMARY JUDGMENT (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on the Labor Law 240(1) cause of action based upon a fall from a height of 10.5 to 20 inches. The court noted that, despite caselaw holding that a fall of 12 inches did not trigger the statute, there is no bright-line […]

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THE FIRST DEPARTMENT, AGREEING WITH THE SECOND, DETERMINED THE ADMINISTRATION FOR CHILDREN’S SERVICES (ACS) DOES NOT HAVE THE AUTHORITY TO SUPERVISE A NONRESPONDENT MOTHER WHO HAD BEEN ABUSED BY RESPONDENT FATHER IN THE CHILD’S PRESENCE; THE AUTHORITY TO SUPERVISE A NONRESPONDENT MOTHER IS ONLY TRIGGERED WHEN THE COURT ORDERS THE CHILD REMOVED FROM THE HOME, NOT THE CASE HERE (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Gesmer, considering the appeal as an exception to the mootness doctrine, determined the court did not have the authority under the Family Court Act to order the Administration for Children’s Services (ACS) to supervise a so-called “nonrespondent” mother who had been abused by respondent father in […]

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FILING A REQUEST FOR JUDICIAL INTERVENTION CONSTITUTED TAKING PROCEEDINGS FOR THE ENTRY OF JUDGMENT WITHIN ONE YEAR OF DEFENDANT’S DEFAULT; THE FORECLOSURE ACTION SHOULD NOT HAVE BEEN DISMISSED AS ABANDONED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined this foreclosure action should not have been dismissed as abandoned on the ground plaintiff failed to take action within one year of defendant’s default. In fact plaintiff filed a request for judicial intervention which constituted taking “proceedings for the entry of judgment within one year after the default:” […]

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PLAINTIFF, A DEVELOPMENTALLY DISABLED STUDENT, WAS KNOCKED OVER BY ANOTHER STUDENT; THE DEFENDANT SCHOOL HAS A DUTY TO PROPERLY SUPERVISE ITS STUDENTS; QUESTIONS OF FACT PRECLUDED SUMMARY JUDGMENT IN FAVOR OF DEFENDANT SCHOOL (THE YOUNG ADULT INSTITUTE, INC.) (SECOND DEPT).

The Second Department, reversing Supreme Court, determined there were questions of fact precluding summary judgment in favor of defendant in this negligent supervision case. Plaintiff, a developmentally disable adult and a member of defendant Young Adult Institute, Inc. (YAI) was knocked over in a parking lot by a fellow student: Programs such as YAI that […]

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PLAINTIFF TRIPPED OVER AN EMPTY MILK CRATE ON A CARPETED FLOOR; THE CONDITION WAS DEEMED “OPEN AND OBVIOUS” AS A MATTER OF LAW ENTITLING DEFENDANTS TO SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants were entitled to summary judgment in this slip and fall case on the ground the empty milk crate plaintiff tripped over was an “open and obvious” condition: The accident occurred in the morning, during one of the plaintiff’s usual daytime shifts. As the plaintiff was walking in […]

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THE JUDGE SHOULD NOT HAVE DELEGATED ITS AUTHORITY TO SET A SCHEDULE FOR MOTHER’S PARENTAL ACCESS TO THE PARTIES IN THIS CUSTODY ACTION (SECOND DEPT).

The Second Department, reversing (modifying) Family Court, held the judge should not have left it up to mother and the non-family-member (Pierce) who brought the custody petition to determine mother’s parental access: … [A[ “court may not delegate its authority to determine parental access to either a parent or a child” … . Here, the […]

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IN A SLIP AND FALL, PROOF OF GENERAL CLEANING PRACTICES DOES NOT DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF THE ALLEGED DANGEROUS CONDITION; ONLY PROOF THE AREA WAS INSPECTED OR CLEANED CLOSE IN TIME TO THE FALL WILL SUFFICE (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 dangerous condition and therefore were not entitled to summary judgment: … [T]he evidence submitted by the defendants in support of their motion failed to demonstrate, prima facie, that they lacked constructive […]

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