Bruce Freeman – Page 527 – New York Appellate Digest

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Entries by Bruce Freeman

CLAIMS BY CORRECTIONS OFFICERS SEEKING TO REQUIRE THE DEPARTMENT OF CORRECTIONS TO PROVIDE TRAINING AND EQUIPMENT FOR DEALING WITH VIOLENT PRISONERS WERE NOT JUSTICIABLE (FIRST DEPT).

The First Department, reversing Supreme Court, determined the allegations by the plaintiff corrections officers concerning training and equipment for dealing with violent prisoners were not justiciable: These claims are not justiciable. In seeking an order that would require the Department of Correction (DOC) to make specific decisions on staffing, training, and equipment, plaintiffs would have […]

January 12, 2021

Evidence, Negligence

THE PROPERTY OWNERS AND THE SECURITY COMPANY WERE PROPERLY FOUND LIABLE FOR PLAINTIFF’S SEVERE INJURIES CAUSED BY TWELVE-YEAR-OLD BOYS WHO THREW A SHOPPING CART OVER A FOURTH FLOOR RAILING STRIKING PLAINTIFF ON THE GROUND BELOW (FIRST DEPT).

The First Department, ordering a new trial on damages if the plaintiffs do not stipulate to a reduction from $14.5 to $10 million, determined the defendant property owners and the security company (PSS) were properly found liable for the injuries caused by two twelve-year-old boys who threw a shopping cart over a fourth floor railing […]

January 12, 2021

Freedom of Information Law (FOIL)

FOIL REQUEST FOR TRAFFIC VIOLATIONS BUREAU (TVB) RECORDS RELEVANT TO A TRAFFIC ACCIDENT SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined petitioner’s FOIL request for the records relevant to a traffic accident from the Traffic Violations Bureau (TVB) should have been granted: The only FOIL exemption at issue in this case applies to records that “are compiled for law enforcement purposes and which, if disclosed, would . . . interfere with […]

January 12, 2021

Criminal Law, Evidence

DEFENDANT’S MOTION TO SEVER THE TWO OFFENSES, WHICH OCCURRED ON DIFFERENT DATES AND WERE UNRELATED, SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing defendant’s convictions, determined the two separate crimes which occurred on different dates should not have been joined for a single trial. Defendant was charged with leaving the scene of an accident on September 4, 2011, and DWI on January 15, 2012. The officer who arrested defendant in January 2012 for DWI […]

January 12, 2021

Criminal Law, Evidence

THE TRAFFIC STOP AND CANINE SEARCH WERE JUSTIFIED; THE DISSENT ARGUED THE CANINE SEARCH WAS NOT (THIRD DEPT).

The Third Department, over a dissent, determined the traffic stop was valid and the extended detention for a canine search was justified. The dissent argued the canine search was not justified: The trooper testified that it was fully dark at the time of the stop and that he and defendant had their vehicles’ headlights on, […]

January 7, 2021

Bankruptcy, Civil Procedure, Foreclosure, Real Property Actions and Proceedings Law (RPAPL)

THE DEBT WAS ACCELERATED WHEN THE BANKRUPTCY STAY WAS LIFTED; THE FORECLOSURE ACTION WAS THEREFORE TIME-BARRED; DISAGREEING WITH THE 2ND DEPARTMENT, THE DEFENDANTS DID NOT NEED TO INTERPOSE A COUNTERCLAIM TO CANCEL THE MORTGAGE PURSUANT TO RPAPL 1501 (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Clark, determined the debt was accelerated when the automatic bankruptcy stay was lifted. Therefore the foreclosure action was untimely and the mortgage was properly cancelled pursuant to RPAP 1501: … [T]he mortgage was accelerated on December 8, 2011, the date on which the bankruptcy court issued […]

January 7, 2021

Criminal Law, Evidence

A JUROR WHO WAS A RETIRED DETECTIVE ACTED AS AN UNSWORN EXPERT WITNESS IN THE DELIBERATIONS; “MOLINEUX” EVIDENCE DEFENDANT LOOKED AT PORNOGRAPHY BEFORE ALLEGEDLY COMMITTING THE SEX-RELATED OFFENSES SHOULD NOT HAVE BEEN ADMITTED (FIRST DEPT).

The First Department, reversing defendant’s sex abuse and burglary convictions, determined: (1) a juror who was a retired detective acted as an unsworn expert witness in the deliberations; and (2) evidence defendant looked at pornography before allegedly committing the crimes was not necessary to prove identity and any probative value was outweighed by the prejudicial […]

January 7, 2021

Employment Law, Human Rights Law

PLAINTIFF POLICE OFFICER RAISED QUESTIONS OF FACT IN THIS EMPLOYMENT DISCRIMINATION CASE ALLEGING AN ANTI-GAY HOSTILE WORK ENVIRONMENT (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff police officer’s employment discrimination complaint should not have been dismissed. Plaintiff is a gay man and the complaint alleged actionable discrimination claims under the New York State and New York City Human Rights Law (HRL): … [P]laintiff was … exposed to two sergeants who quickly surmised, based […]

January 5, 2021

Labor Law-Construction Law

THE ACCIDENT WAS NOT THE TYPE OF GRAVITY-RELATED INCIDENT COVERED BY LABOR LAW 240 (1); BUT THERE WAS A QUESTION OF FACT WHETHER THE GENERAL CONTRACTOR WAS LIABLE PURSUANT TO LABOR LAW 200 (FIRST DEPT).

The First Department, reversing Supreme Court, determined the Labor Law 240(1) cause of action was properly dismissed but the Labor Law 200 cause of action should not have been dismissed. Plaintiff was injured when a pipe rolled over his foot, not the type of gravity-related accident covered by Labor Law 240 (1). But the accident […]

January 5, 2021

Contract Law, Insurance Law

AN ANSWER TO AN AMBIGUOUS QUESTION ON AN APPLICATION FOR INSURANCE COVERAGE IS NOT A MATERIAL MISREPRESENTATION; THEREFORE THE ANSWER DID NOT VOID THE POLICY WHICH REMAINS IN FULL FORCE AND EFFECT (FIRST DEPT).

The First Department, reversing Supreme Court, determined a question in the application for insurance coverage was ambiguous. Therefore the answer to the question was not a material misrepresentation and the policy remains in full force and effect: A misrepresentation in an insurance application is material, voiding the policy ab initio, if, had the true facts been known, […]

January 5, 2021

About Bruce Freeman

Entries by Bruce Freeman

CLAIMS BY CORRECTIONS OFFICERS SEEKING TO REQUIRE THE DEPARTMENT OF CORRECTIONS TO PROVIDE TRAINING AND EQUIPMENT FOR DEALING WITH VIOLENT PRISONERS WERE NOT JUSTICIABLE (FIRST DEPT).

THE PROPERTY OWNERS AND THE SECURITY COMPANY WERE PROPERLY FOUND LIABLE FOR PLAINTIFF’S SEVERE INJURIES CAUSED BY TWELVE-YEAR-OLD BOYS WHO THREW A SHOPPING CART OVER A FOURTH FLOOR RAILING STRIKING PLAINTIFF ON THE GROUND BELOW (FIRST DEPT).

FOIL REQUEST FOR TRAFFIC VIOLATIONS BUREAU (TVB) RECORDS RELEVANT TO A TRAFFIC ACCIDENT SHOULD HAVE BEEN GRANTED (FIRST DEPT).

DEFENDANT’S MOTION TO SEVER THE TWO OFFENSES, WHICH OCCURRED ON DIFFERENT DATES AND WERE UNRELATED, SHOULD HAVE BEEN GRANTED (FIRST DEPT).

THE TRAFFIC STOP AND CANINE SEARCH WERE JUSTIFIED; THE DISSENT ARGUED THE CANINE SEARCH WAS NOT (THIRD DEPT).

THE DEBT WAS ACCELERATED WHEN THE BANKRUPTCY STAY WAS LIFTED; THE FORECLOSURE ACTION WAS THEREFORE TIME-BARRED; DISAGREEING WITH THE 2ND DEPARTMENT, THE DEFENDANTS DID NOT NEED TO INTERPOSE A COUNTERCLAIM TO CANCEL THE MORTGAGE PURSUANT TO RPAPL 1501 (THIRD DEPT).

A JUROR WHO WAS A RETIRED DETECTIVE ACTED AS AN UNSWORN EXPERT WITNESS IN THE DELIBERATIONS; “MOLINEUX” EVIDENCE DEFENDANT LOOKED AT PORNOGRAPHY BEFORE ALLEGEDLY COMMITTING THE SEX-RELATED OFFENSES SHOULD NOT HAVE BEEN ADMITTED (FIRST DEPT).

PLAINTIFF POLICE OFFICER RAISED QUESTIONS OF FACT IN THIS EMPLOYMENT DISCRIMINATION CASE ALLEGING AN ANTI-GAY HOSTILE WORK ENVIRONMENT (FIRST DEPT).

THE ACCIDENT WAS NOT THE TYPE OF GRAVITY-RELATED INCIDENT COVERED BY LABOR LAW 240 (1); BUT THERE WAS A QUESTION OF FACT WHETHER THE GENERAL CONTRACTOR WAS LIABLE PURSUANT TO LABOR LAW 200 (FIRST DEPT).

AN ANSWER TO AN AMBIGUOUS QUESTION ON AN APPLICATION FOR INSURANCE COVERAGE IS NOT A MATERIAL MISREPRESENTATION; THEREFORE THE ANSWER DID NOT VOID THE POLICY WHICH REMAINS IN FULL FORCE AND EFFECT (FIRST DEPT).

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