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Entries by Bruce Freeman

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ASSAULT AND BATTERY CAUSES OF ACTION AGAINST THE POLICE DO NOT REQUIRE A SPECIAL DUTY OWED TO PLAINTIFF (FIRST DEPT).

The First Department, reversing Supreme Court, determined the assault and battery causes of action against the city did not require demonstration of a special duty owed plaintiffs by the police: Plaintiff’s … causes of action sounded in assault and battery, and not negligence. Therefore, the question was not whether the police owed plaintiff a special […]

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DEFENDANT WAS NOT ADEQUATELY INFORMED ABOUT HIS SENTENCING EXPOSURE, THE NATURE OF THE CHARGES AND THE RISKS OF REPRESENTING HIMSELF; NEW TRIAL ORDERED (FIRST DEPT).

The First Department, reversing defendant’s conviction and ordering a new trial, determined defendant was not adequately warned about the risks of representing himself: The record “does not sufficiently demonstrate that defendant was aware of his actual sentencing exposure” … , including the potential for his sentences in two pending cases, arising from unrelated incidents, to […]

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THE INCAPACITATED PERSON’S SON SHOULD NOT HAVE BEEN REPLACED AS GUARDIAN BY A NON-FAMILY-MEMBER IN THE ABSENCE OF A TESTIMONIAL HEARING (FIRST DEPT).

The First Department, reversing Supreme Court, determined the Incapacitated Person’s (IP’s) son should not have been removed as guardian and replaced with a non-family-member in the absence of a testimonial hearing: Rather than hold a testimonial hearing, Supreme Court simply accepted what the Court Examiner claimed in her motion. The Court did not make any […]

PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON LABOR LAW 240 (1) AND 241 (6) CAUSES OF ACTION STEMMING FROM TWO INCIDENTS: A FORM FELL OFF A WALL ONTO PLAINTIFF; PLAINTIFF WAS INJURED BY A DEFECTIVE GRINDER (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined plaintiff’s motions for summary judgment on Labor Law 240 (1) and 241 (6) causes of causes of action should have been granted. Two separate incidents were alleged: (1) a concrete form fell three to five feet off a wall onto plaintiff; and (2) plaintiff was injured after […]

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IN CONSIDERING A MOTION TO DISMISS A PETITON TO MODIFY CUSTODY TO ALLOW RELOCATION, FAMILY COURT MUST ACCEPT THE FACTS ALLEGED IN THE PETITION AS TRUE AND AFFORD PETITIONER EVERY FAVORABLE INFERENCE; MOTHER’S PETITION SHOULD NOT HAVE BEEN DISMISSED WITHOUT A HEARING (THIRD DEPT).

The Third Department, reversing Family Court, determined mother’s petition for a modification of custody to allow her to relocate to New Jersey should not have been dismissed without a hearing: “While not every petition in a Family Ct Act article 6 proceeding is automatically entitled to a hearing” … , an evidentiary hearing is generally […]

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FAMILY COURT DOES NOT HAVE THE AUTHORITY TO DIRECT THE DEPARTMENT OF SOCIAL SERVICES (DSS) TO COMMENCE A NEGLECT PROCEEDING (THIRD DEPT).

The Third Department, reversing Family Court, determined Family Court does not have the authority to direct the Department of Social Services (DSS) to commence a neglect proceeding: Neither DSS nor the attorney for the child disputes the ability of DSS to commence a neglect proceeding without leave of a court. They also do not dispute […]

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PLAINTIFF, A LANDSCAPING CONTRACTOR, DID YARD WORK FOR DEFENDANT HOMEOWNER, INCLUDING SPREADING MULCH AND USING HIS OWN LADDER TO TRIM A TREE; PLAINTIFF POSITIONED THE LADDER ON THE MULCH; THE LADDER FELL OVER WHEN PLAINTIFF WAS STANDING ON IT; DEFENDANT HOMEOWNER DID NOT CREATE OR HAVE NOTICE OF THE DANGEROUS CONDITION (THE MULCH) AND DID NOT SUPERVISE OR DIRECT PLAINTIFF’S TREE-TRIMMING WORK; DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN GRANTED (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, determined defendant homeowner’s motion for summary judgment in this ladder-fall case should have been granted. Plaintiff alleged defendant asked him to trim some tree branches. Plaintiff placed his own ladder on mulch which he (plaintiff) had spread there as part of his landscaping work. Plaintiff alleged the mulch […]

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PURSUANT TO CPLR 3408 (B), WHEN DEFENDANTS IN THIS FORECLOSURE ACTION APPEARED WITHOUT COUNSEL AT THE SETTLEMENT CONFERENCE, SUPREME COURT SHOULD HAVE DETERMINED WHETHER THEY WERE ENTITLED TO ASSIGNED COUNSEL, MATTER REMITTED (THIRD DEPT).

The Third Department, remitting the matter for a finding whether defendants in this foreclosure action are eligible for assigned counsel, determined the judge did not comply with CPLR 3408 (b) at the settlement conference: [CPLR 3408 (b)] provides that, at the initial foreclosure settlement conference, “any defendant currently appearing pro se[] shall be deemed to […]

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THE DEPARTMENT OF SOCIAL SERVICES DID NOT DEMONSTRATE RESPONDENTS (MOTHER AND FATHER) VIOLATED THE ORDER OF SUPERVISION; IN THIS ORDER-VIOLATION PROCEEDING, FAMILY COURT SHOULD NOT HAVE RELIED UPON AND REFERRED TO EVIDENCE, SOME OF WHICH WAS INADMISSIBLE HEARSAY, FROM THE UNDERLYING NEGLECT PROCEEDING (THIRD DEPT).

The Third Department, reversing Family Court, determined the Department of Social Services (petitioner) did not demonstrate respondents (mother and father) violated the order of supervision and Family Court should not have incorporated evidence from a separate neglect proceeding into the order-violation proceeding: … [I]t was error in the context of a violation motion for Family […]

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