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Entries by Bruce Freeman

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THE APPELLATE DIVISION REDUCED DEFENDANT’S SENTENCE, IN PART BECAUSE THE SENTENCING JUDGE MAY HAVE BEEN REACTING TO CRITICISM OF HOW THE TRIAL WAS HANDLED (SECOND DEPT).

The Second Department, reducing defendant’s sentence, over a dissent, determined the sentencing judge reacted to criticism of how the trial was conducted: The Supreme Court imposed the maximum period of imprisonment of 4½ years’ incarceration …  and 2 years postrelease supervision … , apparently based upon the defendant’s claim during the presentence interview that the judge, […]

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EVIDENCE OF SERIOUS PHYSICAL INJURY INSUFFICIENT, ASSAULT SECOND CONVICTION VACATED (SECOND DEPT).

The Second Department, vacating the assault second conviction, determined the evidence of “serious physical injury” was insufficient: ​The Legislature has defined the term “[s]erious physical injury” to mean “physical injury which creates a substantial risk of death, or which causes death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment […]

DEFENDANT WAS REMOVED FROM THE COURTROOM WHEN HE DISRUPTED THE PROCEEDINGS AS THE GUILTY VERDICT WAS BEING DELIVERED; DEFENDANT SHOULD FIRST HAVE BEEN WARNED THAT HE WOULD BE REMOVED IF HE CONTINUED TO DISRUPT THE PROCEEDINGS; NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing the conviction, over a dissent, determined the defendant should not have been removed form the courtroom without first issuing a warning. The defendant was removed after disrupting the court as the verdict was being delivered: After the jury foreperson announced “guilty” on the final charge (count 4) of criminal possession of […]

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IN THIS ACTION SEEKING TO ENFORCE AFFIDAVITS OF CONFESSION OF JUDGMENT, INFORMATION SUBPOENAS ISSUED BY PLAINTIFFS SHOULD NOT HAVE BEEN QUASHED (SECOND DEPT).

The Second Department, reversing Supreme Court, in an action seeking to enforce affidavits of confession of judgment, determined the motion to quash information subpoenas should not have been granted: … Supreme Court improvidently exercised its discretion in granting the defendants’ motion to quash the information subpoenas. CPLR 5223 compels disclosure of “all matter relevant to the […]

A FALSE IMPUTATION OF HOMOSEXUALITY IS NOT DEFAMATION PER SE; THEREFORE SPECIAL DAMAGES MUST BE ALLEGED; THE FAILURE TO ALLEGE SPECIAL DAMAGES REQUIRED DISMISSAL OF THE COMPLAINT (SECOND DEPT).

The Second Department, in a full-fledged, comprehensive opinion by Justice Roman which cannot be fully summarized here, reversing Supreme Court, determined a false imputation of homosexuality is not defamation per se. Therefore the defamation cause of action, which did not allege special damages, should have been dismissed (defamation per se does not require special damages): […]

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PLAINTIFF BANK DID NOT DEMONSTRATE STANDING WITH ADMISSIBLE EVIDENCE AND THE LOST NOTE AFFIDAVIT WAS INSUFFICIENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank did not demonstrate standing with admissible evidence and the lost note affidavit was insufficient: … [T]he only business record entered into evidence to support DeCaro’s [plaintiff’s loan verification consultant’s] testimony that the plaintiff was in possession of the note on the date of commencement was plaintiff’s Exhibit […]

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AN INFORMAL JUDICIAL ADMISSTION BY PLAINTIFF BANK’S FORMER COUNSEL IN THIS FORECLOSURE ACTION RAISED A QUESTION OF FACT WHETHER THE LOAN HAD BEEN MODIFIED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank’s motion for summary judgment in this foreclosure action should not have been granted because of an informal judicial admission made by plaintiff’s former counsel. The admission raised a question of fact whether the note and mortgage had been superseded by a loan modification: … [T]he averment […]

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THE VILLAGE DEMONSTRATED IT DID NOT HAVE WRITTEN NOTICE OF THE ROAD DEFECT WHICH ALLEGEDLY CAUSED PLAINTIFF’S BICYCLE ACCIDENT, BUT IT FAILED TO DEMONSTRATE IT DID NOT CREATE THE DEFECT; THEREFORE THE VILLAGE’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the village’s motion for summary judgment in this bicycle-related injury case should not have been granted. Plaintiff alleged a road defect caused his accident. The village demonstrated it did not have written notice of the defect but failed to demonstrate it did not create the defect: “[T]he prima […]

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THE NYC BOARD OF HEALTH’S RESOLUTION MANDATING VACCINATION AGAINST MEASLES IS VALID AND LAWFUL; THE OBJECTIONS RAISED ON RELIGIOUS GROUNDS WERE REJECTED BECAUSE THE RESOLUTION DID NOT SINGLE OUT, TARGET OR EVEN MENTION RELIGION (SECOND DEPT).

The Second Department, in a full-fledged, comprehensive opinion by Justice Scheinkman, determined the resolution by the NYC Board of Health mandating vaccination against measles was lawful and valid and did not violate petitioners’ freedom of religion. As a threshold matter the court considered the matter as an exception to the mootness doctrine, because measles outbreaks […]

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THE MOTION TO AMEND THE ANSWER TO ASSERT THE LACK OF STANDING DEFENSE IN THIS FORECLOSURE ACTION SHOULD HAVE BEEN GRANTED; PLAIINTIFF FAILED TO DEMONSTRATE STANDING WITH ADMISSIBLE EVIDENCE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant should have been allowed to amend the answer to assert the lack-of-standing defense and plaintiff bank did not demonstrate standing with admissible evidence: “In the absence of prejudice or surprise resulting directly from the delay in seeking leave, applications to amend or supplement a pleading are to […]

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