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Entries by Bruce Freeman

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THE LAW OF THE CASE DOCTRINE PRECLUDED SUPREME COURT’S CONSIDERATION OF ADDITIONAL EVIDENCE TO JUSTIFY SENTENCING DEFENDANT AS A PERSISTENT VIOLENT FELONY OFFENDER; THE APPELLATE COURT HAD SENT THE MATTER BACK FOR RESENTENCING AFTER FINDING PERSISTENT VIOLENT FELONY OFFENDER STATUS WAS NOT SUPPORTED BY THE EVIDENCE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the law of the case doctrine precluded precluded Supreme Court from considering additional evidence and finding the incarceration tolling period was sufficient to permit sentencing defendant as a persistent violent felony offender. The Second Department, on a prior appeal, had found the tolling period insufficient and sent the […]

DEFENDANT COMMITTED CRIMES IN ONE COUNTY AND LED THE POLICE ON A CAR CHASE WHICH ENDED IN ANOTHER COUNTY; SOME OF THE CHARGES STEMMED FROM THE CAR CHASE; THE JUDGE SHOULD NOT HAVE INSTRUCTED THE JURY THAT THE PEOPLE HAD GEOGRAPHIC JURISDICTION OVER ALL THE COUNTS IF THE PEOPLE HAD JURISDICTION OVER ONE COUNT (SECOND DEPT).

The Second Department, ordering a new trial on some of the charges, determined the judge should not have instructed the jury that finding the People had geographic jurisdiction over one count proved the county with jurisdiction over all counts. Defendant had fled the scene of the murder and led the police on a chase which […]

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ALTHOUGH THE EVIDENCE OF SERIOUS PHYSICAL INJURY WAS INSUFFICIENT, THE EVIDENCE DEFENDANT INTENDED TO INFLICT SERIOUS PHYSICAL INJURY WAS SUFFICIENT; CONVICTIONS REDUCED TO ATTEMPTED GANG ASSAULT, ASSAULT AND ROBBERY (SECOND DEPT).

The Second Department, reducing defendant’s gang assault, assault and robbery convictions to attempted gang assault, assault and robbery, determined the evidence of serious physical injury was insufficient, but the evidence of an intent to inflict serious physical injury was sufficient. The victim was attacked and slashed but no internal organs were injured: Viewing the evidence […]

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WITHOUT EVIDENCE THE TWO POSSESSION-OF-A-WEAPON CHARGES RELATED TO DISTINCT EVENTS, CONSECUTIVE SENTENCES SHOULD NOT HAVE BEEN IMPOSED (SECOND DEPT).

The Second Department, reversing the convictions and vacating the sentences, determined there was no evidence the two possession-of-a-weapon charges were based upon distinct events. Therefore consecutive sentences should not have been imposed: County Court should not have imposed consecutive sentences upon the defendant’s conviction of the two counts of criminal possession of a weapon in […]

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FAMILY COURT SHOULD NOT HAVE FOUND NEW YORK DID NOT HAVE JURISDICTION OVER THIS CUSTODY DISPUTE WITHOUT HOLDING A HEARING PURSUANT TO THE UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT TO DETERMINE WHETHER NEW YORK OR YEMEN WAS THE CHILDREN’S HOME STATE (SECOND DEPT).

The Second Department, reversing Family Court, determined Family Court should not have found New York did not have jurisdiction over this custody dispute without holding a hearing pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). The issue is whether New York or Yemen was the children’s home state: Pursuant to Domestic Relations […]

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FAMILY COURT, UPON REMITTAL AFTER A PRIOR REVERSAL ON APPEAL, DID NOT MAKE A SUFFICIENT RECORD FOR REVIEW OF ITS ORDER RE: FATHER’S PARENTAL ACCESS (SECOND DEPT).

The Second Department, reversing Family Court, determined Family Court, upon remittal after a prior reversal, did not create a sufficient record to allow review of its order re: father’s parental access schedule: “In determining custody and [parental access] issues, the most important factor to be considered is the best interests of the child” … . […]

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RATHER THAN TERMINATING MOTHER’S PARENTAL RIGHTS, FAMILY COURT SHOULD HAVE SUSPENDED JUDGMENT TO GIVE MOTHER A CHANCE TO PREPARE FOR REUNIFICATION WITH HER CHILD (SECOND DEPT).

The Second Department, reversing Family Court, determined the termination of mother’s parental rights was not demonstrated to be in the child’s best interests. Judgment should have been suspended so mother could prepare for reunification with the child: At the dispositional stage of a proceeding to terminate parental rights, the Family Court must make its determination […]

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PLAINTIFF DID NOT DEMONSTRATE STANDING TO BRING THE FORECLOSURE ACTION AND DID NOT PROVIDE SUFFICIENT PROOF OF COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 1304 (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the plaintiff did not demonstrate standing to bring the foreclosure action, the defendants properly raised plaintiff’s failure to comply with the notice requirements of RPAPL 1304 in opposition to the plaintiff’s summary judgment motion, and the plaintiff’s proof of compliance with the notice requirements was insufficient: … [T]he […]

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PLAINTIFF’S DECEDENT WAS TAKEN TO THE DEFENDANT HOSPITAL’S EMERGENCY ROOM AND WAS OPERATED ON BY AN INDEPENDENT SURGEON; PLAINTIFF DEMONSTRATED THE EMERGENCY ROOM EXCEPTION APPLIED AND THE HOSPITAL WAS VICARIOUSLY LIABLE FOR THE SURGEON’S ALLEGED MALPRACTICE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff demonstrated the emergency room exception applied and defendant hospital could be held vicariously liable for the alleged malpractice an independent surgeon: In general, under the doctrine of respondeat superior, a hospital may be held vicariously liable for the negligence or malpractice of its employees acting within the […]

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ALTHOUGH THE CORD WHICH ALLEGEDLY CAUSED PLAINTIFF’S SLIP AND FALL MAY HAVE BEEN OPEN AND OBVIOUS, DEFENDANTS DID NOT DEMONSTRATE IT WAS NOT INHERENTLY DANGEROUS; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants did not establish that the cord or wire over which plaintiff tripped and fell was not inherently dangerous, even if the cord was open and obvious: The plaintiff allegedly was injured when she tripped and fell over a cord or microphone wire while attending an event at […]

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