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Entries by Bruce Freeman

AFTER THE DISCHARGE OF A JUROR FOR MISCONDUCT, THE TRIAL COURT PROPERLY REPLACED THE JUROR WITH AN ALTERNATE WHO HAD BEEN EXCUSED AND SENT HOME; THERE WAS A DISSENT (FIRST DEPT).

The First Department, over a dissent, determined the trial court properly replaced a juror for misconduct with an alternate jury who had been excused and sent home: The plain language of CPL 270.35 (1) states, in relevant part, that “If at any time after the trial jury has been sworn and before the rendition of […]

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DEFENDANT’S CONTEMPT CONVICTION FOR VIOLATING AN ORDER OF PROTECTION STANDS, DESPITE THE FACT THAT THE ORDER OF PROTECTION WAS BASED ON AN OFFENSE SINCE FOUND UNCONSTITUTIONAL (FIRST DEPT).

The First Department determined the order of protection based on a conviction for an offense which has been found unconstitutional was voidable, not void, and therefore remained in effect. Defendant was properly convicted of first-degree criminal contempt under Penal Law § 215.51(b)(v) for violating an order of protection that had been issued upon his conviction […]

PLAINTIFF SLIPPED ON ICE AND SNOW IN AN AREA OF THE WORK SITE USED AS A WALKWAY; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS LABOR LAW 241(6) ACTION SHOULD HAVE BEEN GRANTED; THERE WAS A DISSENT (FIRST DEPT).

The First Department, reversing Supreme Court, over a dissent, determined plaintiff was entitled to summary judgment on his Labor Law 241(6) cause of action. Plaintiff slipped and fell on ice and snow on a walkway used on the work site: [12 NYCRR] Section 23-1.7(d) provides, in pertinent part, that no employee shall be permitted “to use […]

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ALTHOUGH THE TWO INDICTMENTS ALLEGED THE SAME MODUS OPERANDI FOR MEDICAID FRAUD, THE CHARGES INVOLVED DIFFERENT PARTIES AND TIME PERIODS; THE WRIT OF PROHIBITION SEEKING TO PRECLUDE PROSECUTION ON DOUBLE JEOPARDY GROUNDS DENIED OVER A DISSENT (FIRST DEPT).

The First Department, over a dissent, denied the writ of prohibition seeking to preclude a second prosecution for Medicaid fraud on double jeopardy grounds. Although the alleged scheme to defraud was the same, the two indictments involved different parties and different time periods: In essence, the wrongdoing charged in each indictment is the filing of […]

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NEGLIGENT HIRING, SUPERVISION, RETENTION AND TRAINING CAUSES OF ACTION PROPERLY SURVIVED SUMMARY JUDGMENT; THE VICARIOUS LIABILITY CAUSE OF ACTION, HOWEVER, SHOULD HAVE BEEN DISMISSED; IT WAS ALLEGED EMPLOYEES OF A RESIDENTIAL FACILITY BURNED A NONVERBAL, AUTISTIC RESIDENT (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Moulton, determined the vicarious liability cause of action against L & W, the employer of defendants Chavies and Edwards,  should have been dismissed, but the negligent hiring, retention, supervision and training causes of action, as well as claims for punitive damages, properly survived summary judgment. The complaint […]

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THE MOTIONS TO DISMISS THE QUI TAM ACTION ALLEGING THE VIOLATION OF THE NEW YORK FALSE CLAIMS ACT BY SETTING INTEREST RATES ON BONDS PROPERLY DENIED (FIRST DEPT). ​

The First Department affirmed Supreme Court’s denial of the motions to dismiss this qui tam action alleging defendants violated the New York False Claims Act (NYFCA) in setting interest rates for certain variable rate demand obligations (VRDO) (bonds): False claims are actionable if the State provides any portion of the funds used to pay the […]

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THE PROOF WAS NOT SUFFICIENT TO SUPPORT PIERCING THE CORPORATE VEIL AND SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED ON THAT ISSUE (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined the proof was not sufficient to support piercing the corporate veil and summary judgment should have been granted on that issue: “Generally, a plaintiff seeking to pierce the corporate veil must show that (1) the owners exercised complete domination of the corporation in respect to the transaction attacked; […]

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THERE WAS A QUESTION OF FACT WHETHER THE ONE-YEAR STATUTE OF LIMITATIONS IN THE CONTRACT WITH DEFENDANT SUBCONTRACTOR WAS REASONABLE BECAUSE THE RUNNING OF THE STATUTE COULD BE TRIGGERED BY A PARTY OVER WHICH DEFENDANT HAD NO CONTROL (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Singh, reversing Supreme Court, determined the counterclaims by defendant subcontractor, Nastasi, in this breach of a construction contract action, should not have been dismissed. The central issue was whether the one-year contractual statute of limitations was enforceable. Because the statute could be triggered by the failure […]

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CPLR 204(A) IN CONJUNCTION WITH RPAPL 1301(3) TOLLED THE STATUTE OF LIMITATIONS WHILE THE FIRST FORECLOSURE ACTION WAS PENDING, FROM 2010 TO 2013, RENDERING THE SECOND FORECLOSURE ACTION IN 2017 TIMELY (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Mulvey, reversing Supreme Court, determined the instant foreclosure action was not time barred because CPLR 204(a) in conjunction with Real Property Actions and Proceedings Law (RPAPL) 1301(3) prohibited bringing the instant action while the first action was pending: In September 2003, defendant, in exchange for a […]

PLAINTIFF’S MOTION TO AMEND THE COMPLAINT TO CORRECTLY NAME THE DEFENDANT PURSUANT TO CPLR 305(C) AFTER THE STATUTE OF LIMITATIONS HAD RUN SHOULD HAVE BEEN GRANTED (THIRD DEPT).

The Third Department, reversing Supreme Court, determined plaintiff’s motion to amend to complaint to reflect the correct name of the defendant should have been granted: In September 2016, plaintiff allegedly slipped and fell in the bathroom of a McDonald’s restaurant located in the Town of Williamson, Wayne County. In August 2019, plaintiff commenced this action […]

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