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Entries by Bruce Freeman

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AT THE HEARING ON DEFENDANT’S MOTION TO VACATE HIS CONVICTION, DEFENDANT PRESENTED SEVERAL WITNESSES WHO SUPPORTED HIS ALIBI DEFENSE; DEFENSE COUNSEL HAD BEEN MADE AWARE OF THE WITNESSES BUT FAILED TO INVESTIGATE; THERE CAN BE NO STRATEGIC JUSTIFICATION FOR SUCH A FAILURE; DEFENDANT’S CONVICTION SHOULD HAVE BEEN VACATED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion to vacate his conviction based upon ineffective of counsel should have granted. Although defendant did not demonstrate “actual innocence,” the defendant presented several witnesses who testified defendant had left the party before the shooting and defendant’s hair was short, not braided, at the time of the […]

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THE STOP OF DEFENDANT’S CAR WAS NOT SUPPORTED BY REASONABLE SUSPICION; THE REPORT THAT A SUSPICIOUS CAR WAS FOLLOWING SOMEONE DID NOT DESCRIBE THE CAR AND DEFENDANT WAS NOT FOLLOWING ANYONE WHEN STOPPED; THE PROOF AT THE SUPPRESSION HEARING DID NOT DEMONSTRATE DEFENDANT WAS TRESPASSING BY DRIVING ON THE PRIVATE ROAD, WHICH WAS THE JUSTIFICATION FOR THE STOP RELIED UPON BY SUPREME COURT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion to suppress a gravity knife seized by a police officer after a traffic stop should have been granted. The officer received a report of a “suspicious vehicle following someone” without any description of the vehicle. The officer eventually stopped defendant’s car, which was moving slowly but […]

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A VIDEO OF AN ALLEGED ASSAULT BY DEFENDANT’S EMPLOYEES WAS EITHER NEGLIGENTLY OR WILLFULLY LOST; SUPREME COURT PROPERLY RULED DEFENDANTS COULD NOT INTRODUCE ANY EVIDENCE WHICH CONTRADICTED AN AFFIDAVIT DESCRIBING WHAT THE VIDEO DEPICTED (SECOND DEPT).

The Second Department determined the sanction imposed on defendants for spoliation of evidence was appropriate. Defendants did not preserve the video of an incident in which plaintiff was allegedly assaulted by employees of the NYC Department of Homeless Services (DHS). Plaintiff’s attorney had specifically requested that the video be preserved. The day after the incident […]

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FAMILY COURT SHOULD HAVE CONDUCTED A HEARING IN THIS CUSTODY/PARENTAL ACCESS PROCEEDING AND SHOULD HAVE MADE FINDINGS OF FACT AS REQUIRED BY CPLR 4213 (SECOND DEPT).

The Second Department, reversing Family Court, determined a hearing should have been held in this custody/parental access proceeding. The court noted Family Court failed to set forth findings of fact as required by CPLR 4213 (b): Parental access determinations should “[g]enerally be made only after a full and plenary hearing and inquiry” … . “While […]

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PURSUANT TO THE SURROGATE’S COURT PROCEDURE ACT (SCPA), AN ADMINISTRATOR MAY BE SUSPENDED WITHOUT A PETITION OR ISSUANCE OF PROCESS FOR MISAPPROPRIATING ESTATE PROPERTY (SECOND DEPT).

The Second Department, reversing Surrogate’s Court, determined the motion to suspend the administrators of the estate should have been granted. The administrators had allowed the estate to languish for 20 years and there was evidence estate property had been misappropriated by one administrator: Pursuant to SCPA 719, “the court may make a decree suspending . […]

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THE ARBITRATORS’ AWARD IN THIS RELIGIOUS DIVORCE PROCEEDING WAS NOT INVALID BECAUSE THE ARBRITRATORS DID NOT STATE THE REASONS FOR THE AWARD, AND THE AWARD WAS NOT INDEFINITE AND NONFINAL; SUPREME COURT SHOULD NOT HAVE VACATED THE AWARD (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the arbitration award should not have been vacated. The award, issued by a rabbinical tribunal in a religious divorce proceeding, required the respondent to arrange for the religious divorce (a Get) and required petitioner to accept the religious divorce. A lump sum award and maintenance of $10,000 per […]

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FAMILY COURT’S DETERMINATION FATHER DID NOT SEXUALLY ABUSE HIS CHILD WAS NOT SUPPORTED BY THE RECORD; THE CHILD’S HEARSAY STATEMENTS WERE CORROBORATED, AND FAMILY COURT’S DECISION TO CREDIT THE TESTIMONY OF FATHER’S EXPERT OVER PETITIONER’S EXPERT WAS NOT SUPPORTED BY THE RECORD (SECOND DEPT).

The Second Department, reversing Family Court, determined the allegations father sexually abused his child, Zamir, were proved by a preponderance of the evidence. The hearsay allegations of the child were corroborated by another child and case workers. Father’s expert, relied upon by Family Court, offered speculative testimony about alleged flaws in the approach taken by […]

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FATHER’S PETITION FOR A MODIFICATION OF CUSTODY OR INCREASED PARENTAL ACCESS SHOULD NOT HAVE BEEN DENIED WITHOUT AN IN CAMERA INTERVIEW OF THE CHILD (SECOND DEPT).

The Second Department, reversing Family Court, determined father’s petition for joint custody or an expansion of parental access should not have been denied without an in camera interview of the child: A modification of a court-ordered custody arrangement must be based upon a showing of a change in circumstances such that the modification is required […]

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PLAINTIFF POLICE OFFICER WAS INJURED CHANGING THE CARBON DIOXIDE CARTRIDGE FOR AN ANIMAL TRANQUILIZER GUN; THE PRODUCTS LIABILITY CAUSE OF ACTION AGAINST THE MANUFACTURER SURVIVED SUMMARY JUDGMENT; THE GENERAL MUNICIPAL LAW 205-E/LABOR LAW 27-A CAUSE OF ACTION AGAINST THE CITY SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the negligence and products liability causes of action against NASCO, the manufacturer of an animal tranquilizer gun, properly survived summary judgment, but the General Municipal Law/Labor Law action against the city and the NYPD should not have been dismissed. Plaintiff, a police officer, was injured changing the […]

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DEFENDANT’S ALLEGATION HE DID NOT RECEIVE THE BANK’S LETTER DE-ACCELERATING THE DEBT WAS NOT SUFFICIENT TO SUPPORT HIS MOTION FOR SUMMARY JUDGMENT DISMISSING THE FORECLOSURE ACTION AS TIME-BARRED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant’s claim  he did not receive plaintiff-bank’s letter de-accelerating the debt (thereby stopping the running of the six-year statute of limitations) was not sufficient to warrant dismissal of the complaint as time-barred: The filing of the summons and complaint in the 2009 action constituted a valid election […]

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