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Entries by Bruce Freeman

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THE PROSECUTION’S REASONS FOR EXCLUDING AN AFRICAN-AMERICAN PROSPECTIVE JUROR WERE PRETEXTUAL; NEW TRIAL ORDERED (FIRST DEPT).

The First Department, reversing defendant’s conviction, in a full-fledged opinion by Justice Renwick, determined the two explanations offered by the prosecution for excluding an African-American prospective juror were pretextual and should not have been accepted by the court: On its face, the subject explanation, that an older gentleman with no children living with roommates would […]

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THE COVID-19 PANDEMIC DID NOT ENTITLE PLAINTIFF COMMERCIAL TENANT TO RENT ABATEMENT UNDER THE LEASE OR RESCISSION BASED UPON FRUSTRATION OF PURPOSE OR IMPOSSIBILITY (FIRST DEPT).

The First Department, reversing Supreme Court, determined that the COVID-19 pandemic did not entitle plaintiff to rent abatement under the lease and did support rescission of the lease based upon frustration of purpose or impossibility: … [P]laintiff is not entitled to a rent abatement under the lease “due to loss of use of all or […]

NEW YORK DOES NOT HAVE LONG-ARM JURISDICTION OVER A MICHIGAN MANUFACTURER OF ALLEGEDLY DEFECTIVE UNMANNED AERIAL VEHICLES (UAV’S) PURCHASED BY SUNY STONY BROOK FOR THE DELIVERY OF MEDICAL SUPPLIES IN MADAGASCAR; TWO-JUSTICE DISSENT (THIRD DEPT).

The Third Department, over a two-justice dissent, determined New York did not have long-arm jurisdiction of the Michigan manufacturer of unmanned aerial vehicles (UAV”s) purchased by SUNY Stony Brook for use in Madagascar (delivering medical supplies to remote locations). Stony Brook returned the UAV’s as defective but defendant did not replace them or issue a […]

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14-YEAR-OLD PLAINTIFF ASSUMED THE RISK OF COLLIDING WITH RETRACTED BLEACHERS DURING A BASKETBALL PRACTICE DRILL IN WHICH BOUNDARY LINES WERE TO BE IGNORED; THE DISSENT DISAGREED (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the defendant school district’s motion for summary judgment in this negligent supervision case should have been granted. The 14-year-old plaintiff was participating in a basketball practice drill in which the boundary lines of the court were to be ignored. When plaintiff attempted to retrieve a ball that went […]

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PLAINTIFF WAS CONVICTED OF THE MURDER OF HIS FATHER AND THE ATTEMPTED MURDER OF HIS MOTHER; THE FILM ABOUT THE CRIMES DOES NOT VIOLATE PLAINTIFF’S RIGHT TO PRIVACY UNDER CIVIL RIGHTS LAW 50 AND 51 (THIRD DEPT).

The Third Department, reversing Supreme Court, in a comprehensive decision well-worth reading, determined defendant, the creator of a docudrama about Christopher Porco’s murder and attempted murder convictions, did not violate Porco’s right to privacy under Civil Rights Law sections 50 and 51. The statutes allow the depiction of newsworthy events, but the statutes could be […]

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AS LONG AS BOTH THE CERTIFIED AND FIRST-CLASS-MAIL LETTERS NOTIFYING A MORTGAGEE OF A TAX FORECLOSURE SALE ARE NOT RETURNED, THE MORTGAGEE IS DEEMED TO HAVE BEEN PROPERLY SERVED PURSUANT TO REAL PROPERTY TAX LAW 1125 (THIRD DEPT).

The Third Department, over a dissent, determined that plaintiff property owner, pursuant to Real Property Tax Law (RPTL) 1125, was properly notified of the tax foreclosure proceedings, despite plaintiff’s allegation that the certified letter was delivered to a post office box, not the street address. RPTL 1125 deems service accomplished if the letters are not […]

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PETITIONER WAS ENTITLED TO A HEARING ON A TEMPORARY ORDER OF PROTECTION (TOP) WHICH BARRED HER FROM HER OWN APARTMENT WHERE HER CHILDREN LIVED; THE APPEAL WAS HEARD AS AN EXCEPTION TO THE MOOTNESS DOCTRINE (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Webber, reversing Criminal Court, determined the mandamus action against  a Criminal Court judge seeking a hearing on a temporary order of protection (TOP) should have been granted. The First Department found that the matter qualified as an exception to the mootness doctrine and heard the appeal […]

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CHARTER SCHOOLS IN NYC ARE REQUIRED TO PROVIDE RANDOM COVID-19 TESTS TO CITY-RESIDENT CHILDREN (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined the NYC Board of Education was required to provide random COVID-19 testing to city-resident students in charter schools, but not to charter-school staff or to nonparty charter schools: … Supreme Court erred in directing the City to provide Covid testing not only to children but also to […]

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PLAINTIFF BANK’S EVIDENCE OF STANDING TO BRING THE FORECLOSURE ACTION WAS INADMISSIBLE HEARSAY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank’s evidence of standing in this foreclosure action was inadmissible hearsay: … [T]he plaintiff submitted … the affidavit of James Green, a vice president of loan documentation for Wells Fargo Bank, N.A., the plaintiff’s loan servicer. Green averred, based upon his review of “the business records relating […]

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DEFENDANT DRIVER’S MOTION FOR SUMMARY JUDGMENT IN THIS PEDESTRIAN-ACCIDENT CASE SHOULD NOT HAVE BEEN GRANTED; PLAINTIFF’S EIGHT-YEAR-OLD SON WAS MORE THAN HALFWAY ACROSS THE STREET WHEN STRUCK (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant driver’s motion for summary judgment in this pedestrian accident cause should not have been granted. Plaintiff’s eight-year-old son was struck by defendant and there was evidence the child was more than halfway across the road at the time he was struck: … [T]he evidence submitted by the […]

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