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Entries by Bruce Freeman

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THE DEFENDANTS IN THIS USURY, FRAUD AND DECEPTIVE BUSINESS PRACTICES ACTION FINANCED THE SALE OF JEWELRY OVER MANY MONTHS, MARKETING THE SALES AS A WAY FOR CONSUMERS TO IMPROVE THEIR CREDIT; THE MAJORITY HELD THE BUSINESS MET THE DEFINITION OF A “CREDIT SERVICES BUSINESS” WITHIN THE MEANING OF GENERAL BUSINESS LAW 458-H (FOURTH DEPT).

The Fourth Department, over a dissent, determined the cause of action which alleged defendants operated a “credit services business” within the meaning of General Business Law 458-h. The defendants financed the purchase of jewelry, claiming that such financing was a means of improving consumers’ credit record: Plaintiff commenced this action alleging various claims for usury, […]

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THE PEOPLE DEMONSTRATED THE EXERCISE OF DUE DILIGENCE IN ATTEMPTING TO LOCATE THE DEFENDANT; DEFENDANT’S MOTION TO DISMISS THE INDICTMENT ON SPEEDY TRIAL GROUNDS SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing County Court on the People’s appeal, determined the indictment should not have been dismissed on speedy trial grounds because the People demonstrated the exercise of due diligence in attempting to locate the absent defendant: In computing the time within which the People must be ready for trial, the court must exclude, […]

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DEFENDANT CLAIMED IN HIS DEPOSITION HE COULDN’T STOP AT THE RED LIGHT BECAUSE THE FLOOR MAT HAD ROLLED UP UNDER THE BRAKE PEDAL; PLAINTIFF SUBMITTED THE DEPOSITION AS PART OF PLAINTIFF’S SUMMARY JUDGMENT MOTION; THE MAJORITY HELD THE DEPOSITION WAS HEARSAY AND THEREFORE COULD NOT DEFEAT SUMMARY JUDGMENT; TWO DISSENTERS ARGUED THE USUAL HEARSAY RULES DID NOT APPLY BECAUSE THE DEPOSITION WAS SUBMITTED BY PLAINTIFF (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, determined the plaintiff’s motion for summary judgment in this intersection traffic accident was properly granted. The defendant, in his deposition, claimed he was unable to stop at the red light because the floor mat had rolled up under the brake pedal. The plaintiff submitted defendant’s deposition testimony as part […]

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FAMILY COURT DID NOT HAVE THE AUTHORITY TO CONDITION VISITATION UPON FATHER’S PARTICIPATION IN MENTAL HEALTH COUNSELING; THEREFORE FATHER’S PETITION TO MODIFY CUSTODY AND VISITATION SHOULD NOT HAVE BEEN DISMISSED ON THE GROUND THAT ORDER HAD BEEN VIOLATED (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined the motion to dismiss father’s petition to modify custody and visitation shoud not have been granted. The motion to dismiss argued father had not complied with the court’s order conditioning visitation on participation in mental health counseling. The court did not have the authority to issue that order: […]

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ORDER ADJUDICATING DEFENDANT A LEVEL TWO SEX OFFENDER WAS DEFECTIVE; MATTER REMITTED (FOURTH DEPT).

The Fourth Department, reversing County Court, determined the order adjudicating defendant a level two sex offender was defective: County Court failed to comply with Correction Law § 168-n (3), pursuant to which the court was required to set forth the findings of fact and conclusions of law upon which it based its determination. The standardized […]

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FATHER’S PETITION TO MODIFY CUSTODY TO ALLOW HIS RELOCATION TO NORTH CAROLINA SHOULD NOT HAVE BEEN GRANTED; CRITERIA EXPLAINED (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined father’s petition to modify custody to allow his relocation to North Carolina should not have been granted: In its decision, the court considered the relevant Tropea factors but erred in applying those factors to the facts and circumstances in the case at bar. Contrary to the court’s determination, the father […]

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MOTHER’S PETITION FOR A MODIFICATION OF CUSTODY TO ALLOW RELOCATION SHOULD NOT HAVE BEEN DISMISSED WITHOUT A HEARING (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined mother’s petition for a modification of custody to accommodate relocation should not have been dismissed without holding a hearing: … [T]he mother alleged that she had specific employment advancement opportunities at her job in Monroe County, and “economic necessity . . . may present a particularly persuasive ground for […]

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POLICE OFFICER’S OPINION A HOMICIDE HAD BEEN COMMITTED AND THE VICTIM’S MOTHER’S TESTIMONY ABOUT THE VICTIM’S PERSONAL BACKGROUND SHOULD NOT HAVE BEEN ADMITTED; OPINION ISSUE REVIEWED IN THE INTEREST OF JUSTICE; MANSLAUGHTER CONVICTION REVERSED (FOURTH DEPT).

The Fourth Department, reversing defendant’s manslaughter conviction, determined the investigating officer’s opinion that the death was a homicide and the victim’s mother’s testimony about the personal background of the victim should not have been admitted: Defendant’s contention that County Court erred in allowing an investigating police officer to testify regarding his opinion that a homicide […]

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ALTHOUGH THE DEFENDANT VIOLATED THE ORDER OF PROTECTION BY GOING INSIDE THE PROTECTED PERSON’S HOUSE, THERE WAS INSUFFICIENT EVIDENCE OF ANY CONTACT WITH THE PROTECTED PERSON; CRIMINAL CONTEMPT FIRST CONVICTION REDUCED TO CRIMINAL CONTEMPT SECOND (FOURTH DEPT).

The Fourth Department, reducing the criminal contempt first conviction to criminal contempt second, determined the evidence was legally insufficient. The defendant violated the order of protection by going inside the protected person’s house but there was insufficient evidence of any contact between the defendant and the protected person: … [T]he People adduced legally insufficient evidence […]

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