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Entries by Bruce Freeman

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THE NOTICE OF APPEAL WAS TIMELY SERVED BUT WAS NOT TIMELY FILED WITH THE CLERK OF THE COURT; THE 3RD DEPARTMENT DISMISSED THE APPEAL; THE APPELLATE COURT HAS THE DISCRETION TO ALLOW A LATE FILING; MATTER REMITTED (CT APP).

The Court of Appeals, reversing the Appellate Division, determined that, although the pro se inmate-petitioner did not timely file the notice of appeal, the notice was timely served and the Third Department could have exercised discretion to allow a late filing. The matter was remitted because the Third Department’s decision was silent about the reasons […]

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THE RECORD WAS NOT SUFFICIENT FOR THE APPEAL OF THE SORA RISK LEVEL CLASSIFICATION; MATTER REMITTED (THIRD DEPT).

The Third Department, reversing County Court, determined the appeal of the Sex Offender Registration Act (SORA) risk level classification could not be heard because the record was not sufficient. The matter was remitted: “Although the short form order utilized by County Court contains the ordered language required to constitute an appealable paper, the written order […]

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THE EVIDENCE OF ALTERCATIONS IN THE PRESENCE OF THE CHILDREN AND ALCOHOL CONSUMPTION DID NOT SUPPORT THE NEGLECT FINDINGS (THIRD DEPT).

The Third Department, reversing Family Court, determined the neglect findings were not supported by the record: With respect to the April 2018 incident, petitioner did not sufficiently demonstrate the presence of the children during the altercation that occurred. Given that “a finding of imminent danger is contingent on the child[ren] being present,” the evidence relating […]

THE WORKERS’ COMPENSATION BOARD DID NOT HAVE SUFFICIENT EVIDENCE TO MAKE ITS OWN DETERMINATION TO APPORTION SOME OF CLAIMANT’S DISABILITY TO A 1976 INJURY (THIRD DEPT).

The Third Department, reversing the Worker’s Compensation Board, determined the Board did not have sufficient evidence to determine the extent to which a 1976 injury accounted for some of claimant’s disability: We recognize that the Board’s medical guidelines “provide ‘useful criteria’ and the Board makes the ultimate determination of a claimant’s degree of disability, but […]

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THE PEOPLE DID NOT DEMONSTRATE PROBABLE CAUSE FOR THE TRAFFIC STOP; THE 911 CALL WAS NOT PUT IN EVIDENCE AND THE RELIABILITY OF THE CALLER AND THE BASIS FOR THE CALLER’S KNOWLEDGE WERE NOT DEMONSTRATED; THE FACT THAT THE RELEVANT EVIDENCE WAS PRESENTED AT TRIAL WAS IRRELEVANT (CT APP).

The Court of Appeals, reversing the Appellate Division, determined the People did not present sufficient evidence at the suppression hearing. Probable cause for the traffic stop was based on a 911 call. But no evidence was presented to demonstrate the reliability of the caller or the basis for the caller’s knowledge. The fact that the […]

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PLAINTIFF WAS STRUCK AFTER DEFENDANT CROSSING GUARD MOTIONED FOR HIM TO CROSS; THE CROSSING GUARD’S MOTION FOR SUMMARY JUDGMENT PROPERLY GRANTED; THE DISSENT WOULD HAVE DENIED THE MOTION (SECOND DEPT).

The Second Department, over a dissent, affirmed the grant of the crossing guard’s (Gandolfo’s) and the county’s motion for summary judgment in this pedestrian-vehicle accident case. Defendant Gandolfo had assumed her position in the crosswalk and motioned for infant plaintiff to cross the road when plaintiff was struck by a car driven by Upton. The […]

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QUESTION OF FACT WHETHER A CONTRACTOR WAS LIABLE TO A SUBCONTRACTOR FOR LAUNCHING AN INSTRUMENT OF HARM; THE SUBCONTRACTOR WAS INJURED ATTEMPTING TO FIX THE PROBLEM ALLEGEDLY CREATED BY THE CONTRACTOR (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined there was a question of fact whether a contractor, Home Crafts, launched an instrument of harm such that the contractor was liable to a subcontractor, Catalano, who fell from a ladder when attempting to fix the problem. Home Craft had ordered that sheet metal be placed over […]

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EVEN THOUGH DEFENDANT WAS A DISBARRED ATTORNEY, THE TRIAL JUDGE SHOULD HAVE CONDUCTED AN INQUIRY TO MAKE SURE THE DEFENDANT UNDERSTOOD THE RISKS OF REPRESENTING HIMSELF; CONVICTIONS REVERSED (SECOND DEPT). ​

The Second Department, reversing defendant’s conviction, determined the judge should have ensured defendant knew the risks of conducting the trial pro se before allowing defendant, a disbarred attorney, to represent himself: A court must determine that the defendant’s waiver of the right to counsel is made competently, intelligently, and voluntarily before allowing that defendant to […]

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THE ZONING BOARD OF APPEALS’ (ZBA’S) DENIAL OF A LOT-SIZE VARIANCE CONFLICTED WITH A PRIOR RULING BASED ON SIMILAR FACTS; THEREFORE THE ZBA WAS REQUIRED TO PROVIDE A FACTUAL BASIS FOR ITS DECISION; THE DECISION, WHICH WAS SUPPORTED ONLY BY COMMUNITY OPPOSITION, WAS ARBITRARY AND CAPRICIOUS (SECOND DEPT).

The Second Department affirmed Supreme Court’s ruling that the zoning board of appeals (ZBA’s) denial of a lot-size variance was arbitrary and capricious: “A decision of an administrative agency which neither adheres to its own prior precedent nor indicates its reason for reaching a different result on essentially the same facts is arbitrary and capricious,” […]

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THE BANK IN THIS FORECLOSURE ACTION WAS NOT REQUIRED TO DEMONSTRATE IT WAS A LICENSED DEBT COLLECTION AGENCY PURSUANT TO THE NYC ADMINISTRATIVE CODE; THE BANK DID NOT ATTACH THE BUSINESS RECORDS NECESSARY TO DEMONSTRATE DEFENDANT’S DEFAULT (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Iannacci, determined: (1) the bank in this foreclosure action did not have to allege it was a licensed “debt collection agency” pursuant to the NYC Administrative Code (20-490); (2) the proof of defendant’s default was inadmissible hearsay: A judicial foreclosure action such as the one at […]

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