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Entries by Bruce Freeman

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DEFENDANTS WERE NOT ENTITLED TO A DIRECTED VERDICT ON THE EMPLOYMENT DISCRIMINATION CAUSE OF ACTION; DEFENSE COUNSEL’S REMARK ABOUT THE FINANCIAL CONSEQUENCES OF A PLAINTIFF’S VERDICT DEPRIVED PLAINTIFF OF A FAIR TRIAL; THE COURT OF CLAIMS HAS EXCLUSIVE JURISDICTION OVER ACTIONS SEEKING MONEY DAMAGES FROM THE STATE, RELEVANT CAUSES OF ACTION PROPERLY DISMISSED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, over a dissent, determined defendants’ motion for a directed verdict should not have been granted and the defense attorney’s remark in summation warranted a new trial. Plaintiff alleged he was denied promotion at the Central New York Psychiatric Center (CNYPC) because the defendants deemed him mentally unstable due to […]

SENTENCE DEEMED UNDULY HARSH (FOURTH DEPT).

The Fourth Department determined the defendant’s sentence (12 years) was unduly harsh and imposed a sentence (eight years) close to that promised before defendant rejected the offer and went to trial: The charges arose from defendant’s unsuccessful attempt to rob a cab driver at knifepoint. Sitting behind the victim, defendant pulled out a knife and […]

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THE SENTENCE FOR CRIMINAL POSSESSION OF A WEAPON SHOULD HAVE BEEN CONCURRENT WITH THE SENTENCE FOR MURDER (FOURTH DEPT).

The Fourth Department determined the sentence for criminal possession of a weapon should not have been imposed consecutively to the sentence for murder: … [T]he court erred in directing that the sentence imposed on count three of the indictment, charging criminal possession of a weapon in the second degree under Penal Law § 265.03 (3), […]

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THE EVIDENCE DEMONSTRATED RESPONDENT, WHO HAD ENTERED A PLEA OF NOT RESPONSIBLE BY REASON OF MENTAL DISEASE OR DEFECT TO RAPE, ASSAULT AND OTHER CHARGES, SUFFERED FROM A DANGEROUS MENTAL DISORDER REQUIRING CONTINUED PLACEMENT IN A SECURE FACILITY, SUPREME COURT REVERSED (THIRD DEPT).

The Third Department, reversing Supreme Court, determined respondent constituted a danger to himself and others and should remain in a secure facility. Respondent had entered a plea of not responsible by reason of mental disease or defect to rape, assault, criminal possession of a weapon and endangering the welfare of a child. Supreme Court had […]

ON A COLD DAY DEFENDANTS HOSED DOWN THE SIDEWALK WHERE PLAINTIFF SLIPPED AND FELL ON ICE; ANY COMPARATIVE NEGLIGENCE ON PLAINTIFF’S PART IS NOT A BAR TO SUMMARY JUDGMENT (FIRST DEPT).

The First Department, reversing Supreme Court and recalling and vacating a decision in the same matter dated December 17, 2020, determined defendants’ motion for summary judgment in this slip and fall case should not have been granted. Defendant restaurants hosed down the sidewalk where plaintiff, an EMT responding to a call, slipped and fell on […]

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THE REQUEST TO POLL THE JURY SHOULD NOT HAVE BEEN DENIED; THE JUDGE SHOULD NOT HAVE DISCHARGED THE JURY FOREMAN FOR ARGUING WITH ONE OR MORE JURORS WITHOUT INTERVIEWING ALL INVOLVED (FIRST DEPT).

The First Department, ordering a new trial in this personal injury action, determined the trial judge should not have denied plaintiff’s request to poll the jury and the jury foreman should not have been discharged for arguing with one or more jurors without interviewing all involved: It is fundamental error to deny a party’s request […]

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CPLR 7515, ENACTED IN 2018, DOES NOT APPLY RETROACTIVELY TO PROHIBIT MANDATORY ARBITRATION OF SEXUAL HARASSMENT CLAIMS (FIRST DEPT).

The First Department, reversing Supreme Court, determined CPLR 7515, enacted in 2018, should not be applied retroactively to prohibit arbitration of a sexual harassment claim: The provisions of CPLR 7515 relied on by plaintiff are not retroactively applicable to arbitration agreements, like the one at issue, that were entered into preceding the enactment of the […]

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DEFENDANT PRESENTED SUFFICIENT EVIDENCE OF INEFFECTIVE ASSISTANCE OF COUNSEL AND RECANTATION TESTIMONY TO WARRANT A HEARING ON HIS MOTION TO VACATE HIS CONVICTION, COUNTY COURT REVERSED (THIRD DEPT).

The Third Department, reversing County Court, determined defendant’s motion to vacate his conviction should not have been denied without a hearing. The defendant presented sufficient evidence of ineffective assistance of counsel and newly discovered evidence (recantation testimony), as well as evidence of actual innocence, to warrant a hearing on all three issues: Defendant avers, in […]

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DEFENDANT’S FOR CAUSE CHALLENGE TO A JUROR IN THIS ARSON AND ANIMAL TORTURE CASE SHOULD HAVE BEEN GRANTED; THE JUROR EXPRESSED A HIGHLY EMOTIONAL RESPONSE TO INJURY TO ANIMALS AND THE COURT NEVER SPECIFICALLY ASKED IF SHOULD COULD BE FAIR AND IMPARTIAL (THIRD DEPT).

The Third Department, reversing defendant’s convictions of arson and torturing animals, determined defendant’s for cause challenge to a juror who expressed her highly emotional reaction to the injury of animals should have been granted: Defendant challenged this prospective juror for cause on the ground that “because of the animals, she couldn’t be fair and impartial.” […]

THE LEGISLATURE PROPERLY EMPOWERED THE COMMITTEE ON LEGISLATIVE AND EXECUTIVE COMPENSATION TO RECOMMEND LEGISLATIVE AND EXECUTIVE BRANCH SALARY INCREASES AND THE COMMITTEE DID NOT EXCEED THE SCOPE OF ITS AUTHORITY (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Lynch, determined the Committee on Legislative and Executive Compensation was properly created by the Legislature in the 2018 budget bill and the recommendations of salary increases did not exceed the scope Committee’s authority: Plaintiffs commenced this declaratory judgment action seeking, among other things, declarations that (1) […]

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