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Entries by Bruce Freeman

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THE JURY SHOULD HAVE BEEN INSTRUCTED ON THE VEHICLE AND TRAFFIC LAW PROVISION WHICH REQUIRES SIGNALING FOR 100 FEET BEFORE MAKING A TURN, EVEN THOUGH THE TRUCK WHICH MADE THE TURN WAS STOPPED AT A TRAFFIC LIGHT; DEFENSE VERDICT IN THIS TRUCK-BICYCLE ACCIDENT CASE REVERSED (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Barros, overruling a City Court decision, reversing the jury verdict in this truck-bicycle traffic accident case, determined the jury should have been instructed on the Vehicle and Traffic Law provision requiring that a turn signal be activated for 100 feet before turning. The truck was at […]

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THE SOLE MEMBER OF THE LLC WHICH OWNED THE PROPERTY COULD NOT BE HELD LIABLE FOR THE DANGEROUS CONDITION SOLELY BY VIRTUE OF HIS MEMBER STATUS; HOWEVER THERE WAS A QUESTION OF FACT WHETHER THE LLC COULD BE LIABLE (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court in this premises liability case, determined the sole member of the LLC (Romanoff) which owned the premises was not liable, but there was a question of fact whether the LLC had constructive knowledge of the defective railing which collapsed when plaintiff leaned on it: … [T]he plaintiff failed […]

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THE BUSINESS RECORDS REFERRED TO IN THE SUPPORTING AFFIDAVIT WERE NOT ATTACHED; THE BANK’S MOTION FOR A DEFAULT JUDGMENT IN THIS FORECLOSURE ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank’s motion for a default judgment in this foreclosure action should not have been granted. The business records referred in the affidavit of the banks servicing agent were not attached: Where, as here, a foreclosure complaint is not verified, CPLR 3215(f) states, among other things, that upon […]

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THE CLIMATOLOGICAL DATA SUBMITTED BY DEFENDANT IN THIS ICE AND SNOW SLIP AND FALL CASE WAS NOT AUTHENTICATED; BECAUSE DEFENDANT DID NOT DEMONSTRATE THERE WAS A STORM IN PROGRESS AT THE TIME OF THE FALL, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion for summary judgment in this ice and snow slip and fall case should not have been granted. The climatological data presented to show there was a storm in progress at the time of the fall was not authenticated, related to a different county, and conflicted with […]

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A STAY OF THE FORECLOSURE PROCEEDINGS WAS TRIGGERED BY THE SUSPENSION OF DEFENDANT’S ATTORNEY; BUT THE APPEARANCE OF NEW COUNSEL FOR THE DEFENDANT TO OPPOSE PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT WAIVED THE PROTECTION OF THE STAY (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Dillon,, determined the defendant in this foreclosure action waived any stay of proceedings under CPLR 321(c) triggered by her attorney’s suspension: CPLR 321(c) … provides any adversary party with a mechanism for lifting a stay—by serving a notice upon the nonrepresented party to obtain a new […]

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DEFENDANT WAS ENTITLED TO A DOWNWARD DEPARTURE FROM LEVEL TWO TO LEVEL ONE IN THIS STATUTORY RAPE CASE; ALTHOUGH NOT PRESERVED BY A REQUEST FOR A DOWNWARD DEPARTURE, THE APPEAL WAS CONSIDERED IN THE INTEREST OF JUSTICE (SECOND DEPT).

The Second Department, reversing County Court, determined defendant was entitled to a downward departure in this statutory-rape SORA risk level proceeding. The issue was not preserved because defendant did not request a downward departure but the appeal was considered in the interest of justice: “In cases of statutory rape, the Board has long recognized that […]

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IN A COMPREHENSIVE OPINION WITH DETAILED DISCUSSIONS OF THE FELLOW OFFICER RULE, THE STOP OF A VEHICLE BASED ON AN OBSERVED TRAFFIC VIOLATION, THE AUTOMOBILE EXCEPTION TO THE WARRANT REQUIREMENT, AND THE VALIDITY OF AN INVENTORY SEARCH, COUNTY COURT’S DENIAL OF THE MOTION TO SUPPRESS THE COCAINE FOUND IN THE VEHICLE IS REVERSED OVER TWO CONCURRENCES AND A TWO-JUSTICE DISSENT (SECOND DEPT).

The Second Department, in an extensive, comprehensive opinion by Justice Miller, over two concurrences and a two-justice dissent, reversing defendant’s conviction, determined the warrantless search of the vehicle in which cocaine was found was not demonstrated to be valid under the fellow officer rule, was not demonstrated to be valid pursuant to the automobile exception, […]

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IT WAS REVERSIBLE ERROR TO ADMIT AN INAUDIBLE RECORDING AND TO PROVIDE THE JURY WITH A PURPORTED TRANSCRIPT OF THE RECORDING (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined it was reversible error to admit in evidence an inaudible tape recording and to provide the jury with a purported transcript of the recording: Whether a tape recording should be admitted into evidence is within the discretion of the trial court after weighing the probative value of the […]

STATUTORY AMENDMENTS REPEALING MANDATORY SURCHARGES AND CRIME VICTIM ASSISTANCE FEES FOR YOUTHFUL OFFENDERS WERE REMEDIAL IN NATURE AND THEREFORE SHOULD BE APPLIED RETROACTIVELY (SECOND DEPT).

The Second Department, modifying Supreme Court, determined the statutory amendments which went into effect while the appeal was pending were remedial and therefore should be applied retroactively. The amendments repealed the imposition of mandatory surcharges and crime victim assistance fees for youthful offenders: Permitting juveniles whose direct appeals were pending when the amendments were enacted […]

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SUPREME COURT HAD THE AUTHORITY UNDER CPLR 3001 TO ISSUE A DECLARATORY JUDGMENT ON THE PROPER RATE FOR POST-JUDGMENT INTEREST; ANOTHER COURT’S PRIOR DISCUSSION OF THE PROPER INTEREST RATE WAS MERELY ADVISORY (I.E., NOT ON THE MERITS) AND THEREFORE WAS NOT SUBJECT TO THE DOCTRINES OF RES JUDICATA, COLLATERAL ESTOPPEL OR LAW OF THE CASE (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Dillon, over an extensive dissent, determined (1) Supreme Court had the power to issue a declaratory judgment in this hybrid proceeding seeking a declaratory judgment on the rate of post-judgment interest; and (2) Supreme Court correctly found that dicta in a prior ruling about the proper […]

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