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Entries by Bruce Freeman

IN THIS REAR-END COLLISION CASE, THE DEFENDANT DRIVER ALLEGED PLAINTIFF DRIVER STOPPED IN THE MIDDLE LANE OF TRAFFIC FOR NO APPARENT REASON, THEREBY RAISING A QUESTION FACT ABOUT WHETHER PLAINTIFF DRIVER WAS SOLELY AT FAULT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiffs in this rear-end collision case were not entitled to summary judgment. Defendant raised a question of fact alleged plaintiff driver stopped suddenly in the middle lane of traffic for no apparent reason: “A driver of a vehicle approaching another vehicle from the rear is required to maintain […]

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THE JURY SHOULD HAVE BEEN INSTRUCTED ON A LESSER INCLUDED OFFENSE, NEW TRIAL ORDERED (THIRD DEPT).

The Third Department, reversing defendant’s kidnapping first degree conviction and ordering a new trial on that count, determined the trial judge should have given the jury an instruction on unlawful imprisonment second degree as a lesser included offense. Kidnapping first degree requires restraint for more than 12 hours. There was a reasonable view of the […]

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HERE DEFENDANTS SOUGHT TO USE PLAINTIFF’S INDICTMENT AND PLEA TRANSCRIPT IN THEIR DEFENSE OF PLAINTIFF’S CIVIL ACTION; THE ISSUE IS WHETHER THOSE RECORDS WERE SUBJECT TO THE SEALING ORDER ISSUED BY COUNTY COURT; IF THE RECORDS WERE COURT RECORDS AND PROCURED FROM THE COURT, THE SEALING ORDER WOULD NOT EXTEND TO THEM; IF THE RECORDS WERE PROCURED FROM LAW ENFORCEMENT SOURCES, THE SEALING ORDER APPLIES; MATTER REMITTED (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Lynch, determined that whether certain records associated with plaintiff’s criminal action, including the indictment and plea transcript, were “sealed” and thus not accessible by the defendants depended on where the defendants procured them. The sealing order did not extend to “court records” as opposed to records […]

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ALTHOUGH PETITIONER NURSING HOME, A LIMITED LIABILITY COMPANY, HAD AN EXCELLENT INFECTION CONTROL PROGRAM, IT WAS PROPERLY FINED FOR A VIOLATION OF THE INFECTION-CONTROL REGULATIONS BY ONE OF ITS EMPLOYEES (THIRD DEPT).

The Third Department, confirming the findings of the administrative law judge, in a full-fledged opinion by Justice Egan, determined the petitioner nursing-home-facility was subject to fines for violations of the COVID-19 infection-control regulations. The regulations required nursing home employees to change gowns and glove after being in a unit with COVID-19 positive residents. The court […]

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THE ARGUMENT THAT THE ARBITRATOR’S AWARD, WHICH ALLOWED REINSTATEMENT OF AN EMPLOYEE AFTER A PERIOD OF SUSPENSION, VIOLATED PUBLIC POLICY WAS REJECTED; CRITERIA EXPLAINED (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the arbitrator’s award in this employment-discipline case should not have been vacated. The court rejected the argument that the award, which penalized the employee (Williams) for misbehavior as a corrections officer but allowed her reinstatement, violated public policy. The decision is too complex to fairly summarize here. But […]

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ALTHOUGH A CHILD WAS PRESENT IN THE HOME WHEN FATHER STRUCK HIS PREGNANT GIRLFRIEND, THERE WAS NO EVIDENCE THE CHILD SAW OR HEARD THE INCIDENT AND NO EVIDENCE THE CHILD WAS UPSET BY THE INCIDENT; THE NEGLECT AND DERIVATIVE NEGLECT (OF THE THEN UNBORN CHILD) FINDINGS REVERSED (SECOND DEPT).

The Second Department, reversing Family Court, determined the evidence did not support the findings that father neglected a child and derivatively neglected a child who was not yet born at the time of the incident. The findings were based on an incident in which father struck his girlfriend, who was pregnant, while a child, Jolie […]

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TO WARRANT SUMMARY JUDGMENT IN A SLIP AND FALL CASE BASED ON LACK OF NOTICE OF THE CONDITION, A DEFENDANT MUST PROVE WHEN THE SPECIFIC AREA OF THE FALL WAS LAST CLEANED OR INSPECTED; PROOF OF GENERAL CLEANING PRACTICES IS NOT ENOUGH (SECOND DEPT).

The Second Department, reversing Supreme Court in this slip and fall case, determined the defendant hospital did not demonstrate a lack of constructive notice of the water on the floor in front of the elevator. To warrant summary judgment the defendant must show that the area of the slip and fall was inspected or cleaned […]

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THE FOSTER CARE AGENCY DID NOT PROVE IT MADE DILIGENT EFFORTS TO ENCOURAGE AND STRENGTHEN THE PARENT-CHILD RELATIONSHIP BEFORE FILING THE PETITION TO TERMINATE MOTHER’S PARENTAL RIGHTS; PETITION DISMISSED (SECOND DEPT).

The Second Department, reversing Family Court, determined the petitioner foster-care-agency in this termination of parental rights proceeding did not demonstrate it made diligent efforts to encourage and strengthen the parent-child relationship before filing the petition: When a foster care agency brings a proceeding to terminate parental rights on the ground of permanent neglect, it must, […]

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A CANINE SNIFF OF A PERSON IS A SEARCH AND REQUIRES PROBABLE CAUSE TO BELIEVE THE SUBJECT HAS COMMITTED A CRIME, THEREBY TRIGGERING THE NECESSITY FOR A SEARCH WARRANT OR AN EXCEPTION TO THE WARRANT REQUIREMENT (THIRD DEPT). ​

The Third Department, reversing County Court and remitting the matter, in a full-fledged opinion by Justice Ceresia, determined probable cause to believe a crime has been committed is the proper standard for a canine sniff of a person. Here defendant was asked to step out of his vehicle. The canine put his nose in defendant’s […]

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THE RECORD DOES NOT SUPPORT THE WORKERS’ COMPENSATION BOARD’S CONCLUSION THAT CLAIMAINT IS NOT ENTITLED TO PERMANENT-TOTAL-DISABILITY STATUS BASED UPON EXTREME FINANCIAL HARDSHIP; MATTER REMITTED (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board and remitting the matter, determined the Board did not make findings which justified its ruling that claimant was not entitled to relief based upon extreme financial hardship: Workers’ Compensation Law § 35 (3) provides that, “[i]n cases where the loss of wage-earning capacity is greater than [75%], […]

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