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Entries by Bruce Freeman

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THE DEFENDANT’S STATEMENTS MADE TO A CHILD PROTECTIVE SERVICES CASEWORKER SHOULD HAVE BEEN SUPPRESSED; THE CASEWORKER, UNDER THE FACTS, ACTED AS AN AGENT OF LAW ENFORCEMENT DURING THE INTERVIEW (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the statements made by defendant to a Child Protective Services (CPS) caseworker should have been suppressed because, under the facts, she was acting as an agent of law enforcement at the time of the interview: … [T]he CPS caseworker testified at the Huntley hearing that, at the time […]

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SUPREME COURT DID NOT WEIGH THE CONFLICTING EXPERT TESTIMONY ABOUT WHETHER PETITIONER SEX-OFFENDER SUFFERED FROM A MENTAL ABNORMALITY REQUIRING CONFINEMENT PURSUANT TO THE MENTAL HYGIENE LAW; MATTER SENT BACK FOR A NEW HEARING BEFORE A DIFFERENT JUDGE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court in this sex-offender Mental-Hygiene-Law proceeding, determined the court did not base its decision to discharge and release the petitioner on the expert evidence presented at the hearing. The matter was sent back for a new hearing before a different judge: The State’s expert here diagnosed petitioner with ASPD [antisocial […]

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FAMILY COURT’S FAILURE TO CONSIDER THE PSYCHOLOGICAL EVALUATIONS OF THE PARENTS BEFORE AWARDING SOLE CUSTODY TO FATHER REQUIRED REMITTAL (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined the psychological evaluations should have been made before awarding sole custody of the child to father: The mother’s mental and emotional health was the central issue contested in this proceeding, and we conclude that the court abused its discretion in making its determination and awarding the father sole […]

THE REFUSAL OF DEFENDANT’S REQUEST TO POLL THE JURY REQUIRED A NEW TRIAL (FOURTH DEPT).

The Fourth Department, reversing the judgment, determined defendant’s request to poll the jury should not have been denied: Plaintiff commenced this action seeking damages for, inter alia, assault and battery, and in his amended answer defendant asserted counterclaims for, inter alia, defamation. The matter proceeded to trial, and now plaintiff appeals and defendant cross-appeals from […]

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PLAINTIFF’S ATTORNEY’S EMAIL WAS AN ENFORCEABLE STIPULATION OF SETTLEMENT; PLAINTIFF’S SUBSEQUENT REFUSAL TO EXECUTE THE DOCUMENTS WAS A BREACH OF THE SETTLEMENT AGREEMENT (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined an email sent by plaintiff’s attorney constituted an enforceable stipulation of settlement, despite the fact that plaintiff subsequently refused to execute the documents: … [T]he requirements for a valid and enforceable settlement agreement are satisfied here. The email from plaintiff’s lawyer to defendant’s lawyer contained the only two […]

PROBATION CONDITIONS PROHIBITING POSSESSION OF A COMPUTER AND A CELL PHONE WERE NOT ENFORCEABLE UNDER THE FACTS OF THE CASE; DEFENDANT HAD PLED GUILTY TO ATTEMPTED SEXUAL ABUSE FIRST DEGREE (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined some of the conditions of probation prohibiting defendant from possessing a computer and cell phone were not warranted. Defendant pled guilty to attempted sexual abuse first degree: In addition to prohibiting defendant from maintaining an account on a social networking site, condition 34 also prohibits defendant from […]

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IN THIS NEGLIGENT SUPERVISION ACTION AGAINST A SCHOOL DISTRICT, THE DISTRICT DEMONSTRATED A STUDENT’S SEXUAL ASSAULT OF PLANTIFF WAS NOT FORESEEABLE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, over a dissent, determined the defendant school district demonstrated a student’s sexual assault of plaintiff was not foreseeable: … [D]efendant met its … burden on the motion by establishing that the “sexual assault against [plaintiff by the student] was an unforeseeable act that, without sufficiently specific knowledge or notice, […]

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ONCE PLAINTIFF ACCELERATED THE DEBT BY COMMENCING FORECLOSURE DEFENDANTS COULD EXERCISE THE RIGHT TO REDEEM THE MORTGAGE WITHOUT TRIGGERING A CONTRACTUAL PREPAYMENT PENALTY (FOURTH DEPT).

The Fourth Department determined Supreme Court properly ruled defendants could exercise their right of redemption in this foreclosure action without triggering the plaintiff’s contractual right to withhold consent to prepayment: … [D]efendants were not seeking to prepay the amount due under the note, rather plaintiff accelerated the remaining amount due by instituting a foreclosure action […]

PLAINTIFF RAISED A QUESTION OF FACT WHETHER PLAINTIFF’S DECEDENT’S FALL FROM HER BED IN A NURSING HOME WAS CAUSED BY DEFENDANTS’ NEGLIGENCE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined plaintiff raised a question of fact about whether defendants’ negligence was a proximate cause of plaintiff’s decedent’s fall from her bed in defendants’ nursing home: Plaintiff submitted an expert affidavit from a physician with extensive experience in the treatment of geriatric patients and who is familiar with the […]

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PLAINTIFF WAS BROUGHT TO THE HOSPITAL PURSUANT TO THE MENTAL HYGIENE LAW AFTER THREATENING FAMILY MEMBERS AND KILLING A DOG; DEFENDANTS RELEASED PLAINTIFF THE SAME DAY AND PLAINTIFF KILLED THE FAMILY MEMBERS; PLAINTIFF ENTERED A PLEA OF NOT RESPONSIBLE BY REASON OF MENTAL ILLNESS; THE RULE PROHIBITING A PLAINTIFF FROM TAKING ADVANTAGE OF HIS OWN WRONG DID NOT APPLY AND DEFENDANTS’ MOTION TO DISMISS THIS MEDICAL MALPRACTICE WAS PROPERLY DENIED (FOURTH DEPT).

The Fourth Department determined plaintiff’s medical (psychiatric) malpractice action properly survived a motion to dismiss. Plaintiff was treated by defendants after he was brought to the hospital by the police pursuant to Mental Hygiene Law 9.41. Plaintiff had threatened family members and killed a dog. Plaintiff was released the same day and shortly thereafter killed […]

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