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Entries by Bruce Freeman

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IN THIS TRAFFIC-ACCIDENT CASE, PLAINTIFF BROUGHT THE ACTION IN AN IMPROPER VENUE; DEFENDANTS’ MOTION TO CHANGE VENUE WAS SIX DAYS LATE; SUPREME COURT IMPROVIDENTLY EXERCISED ITS DISCRETION IN DENYING THE MOTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ motion to change venue in this traffic-accident case should have been granted. Plaintiff had brought the action in an improper venue. Although the defendants’ motion to change venue was six days late, Supreme Court had the discretion to grant it: CPLR 510 sets forth grounds on which […]

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MOTHER BROUGHT A MANDAMUS-TO-COMPEL PROCEEDING TO REQUIRE THE SUPPORT MAGISTRATE TO HOLD A SUPPORT-ORDER-VIOLATION HEARING WITHIN THE TIME-LIMIT SET IN THE UNIFORM RULES FOR FAMILY COURT; THE APPEAL WAS HEARD AS AN EXCEPTION TO THE MOOTNESS DOCTRINE BECAUSE THE ISSUE IS LIKELY TO RECUR; THE SECOND DEPARTMENT HELD THE SUPPORT MAGISTRATE HAD THE DISCRETION TO ADJOURN THE MATTER BEYOND THE DEADLINE SET IN THE UNIFORM RULES, DESPITE THE MANDATORY LANGUAGE IN THE RULE (SECOND DEPT).

The Second Department, modifying Supreme Court, determined an exception to the mootness doctrine applied (to allow the appeal to be heard) and the mandamus-to-compel proceeding should have been denied on the merits. Petitioner mother sought to compel the support magistrate to hold a hearing on father’s alleged support-order violation within the time allowed by the […]

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PLAINTIFF’S DECEDENT WAS KILLED WHEN DEFENDANT DRIVER, WHO WAS BEING CHASED BY THE POLICE DEFENDANTS, COLLIDED WITH PLAINTIFF’S DECEDENT’S VEHICLE; THE DEFENSE VERDICT IN THE “RECKLESS DISREGARD” ACTION AGAINST THE POLICE WAS REVERSED BECAUSE OF THE OMISSION OF RELEVANT EVIDENCE AND THE ADMISSION OF PREJUDICIAL EVIDENCE; NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing the defense verdict and ordering a new trial in this “reckless disregard” action against the Nassau County Police Department stemming from a fatal traffic accident during a police chase, determined several evidentiary errors deprived plaintiff’s decedent of a fair trial. The vehicle which the police were chasing, driven by defendant Daley, […]

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THE DEPARTMENT OF HEALTH’S BOARD FOR PROFESSIONAL MEDICAL CONDUCT PROPERLY REVOKED PETITIONER-RADIATION-ONCOLOGIST’S LICENSE TO PRACTICE MEDICINE; THE BOARD’S EXPERT OPINED THAT PETITIONER’S USE OF HIGHER “CURATIVE” RADIATION DOSES WHEN LOWER “PALLIATIVE” DOSES WERE APPROPRIATE FELL SHORT OF THE RELEVANT STANDARD OF CARE (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Troutman, determined the Department of Health’s Board for Professional Medical Conduct properly revoked petitioner’s license to practice medicine. Petitioner, a radiation oncologist, was found to have deviated from the generally accepted standard of care by administering higher “curative” doses of radiation treatment when lower “palliative” […]

FOIL REQUESTS TO THE DEPARTMENT OF HEALTH FOR DISCLOSURE OF DECEDENTS’ MEDICAL HISTORY, CAUSE OF DEATH, LOCATION OF INTERMENT, AND WHETHER THEY WERE BURIED, CREMATED, OR MADE AN ANATOMICAL GIFT, CONSTITUTE AN UNWARRANTED INVASION OF PRIVACY (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Rivera, over a dissenting opinion (three judges), determined certain categories of death-related information kept by the Department of Health (DOH) are exempt from disclosure pursuant to the Freedom of Information Law (FOIL): The issue on appeal is whether certain information about decedents that is retained […]

A NYC LOCAL LAW REQUIRING REDUCTIONS IN GREENHOUSE GAS EMISSIONS FROM LARGE BUILDINGS IS NOT PREEMPTED BY THE STATE’S CLIMATE LEADERSHIP AND COMMUNITY PROTECTION ACT (CT APP).

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Cannataro, determined the NYC Local Law requiring reductions in greenhouse gas emissions from large buildings was not preempted the the state’s Climate Leadership and Community Protection Act: The State Constitution grants local governments the power to enact “local laws not inconsistent […]

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THE EVIDENCE THAT DEFENDANT HAD SEXUALLY ASSAULTED THE VICITM’S TWO SISTERS WAS PROPERLY ADMITTED UNDER MOLINEUX IN THIS RAPE PROSECUTION; DEFENDANT ADMITTED HAVING ROUGH SEX WITH THE VICTIM AND CLAIMED IT WAS CONSENSUAL; THE PRIOR CRIME EVIDENCE WAS NOT ADMITTED TO PROVE DEFENDANT HAD SEX WITH THE VICTIM. BUT RATHER TO PROVE HIS STATE OF MIND, HIS INTENT TO HAVE NONCONSENSUAL SEX BY FORCE (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Singas, over two concurrences, affirming defendant’s rape conviction, determined the evidence defendant had sexually assaulted the victim’s sisters was admissible under Molineux. Defendant admitted having sex with the victim, characterizing it as consensual rough sex. The evidence of the prior assaults on the victim’s sisters […]

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CLAIMANT’S SEXUAL ABUSE CONVICTION WAS VACATED AFTER THE ALLEGED VICTIM RECANTED; CLAIMANT BROUGHT AN ACTION AGAINST THE STATE PURSUANT TO COURT OF CLAIMS ACT SECTION 8-B FOR UNJUST CONVICTION AND IMPRISONMENT; THE COURT OF CLAIMS PROPERLY FOUND CLAIMANT DID NOT PROVE HIS INNOCENCE BY CLEAR AND CONVINCING EVIDENCE (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Halligan, over a dissenting opinion, affirming the dismissal of claimant’s action for unjust conviction and imprisonment, determined claimant, whose sexual abuse conviction was vacated after the alleged victim recanted, did not prove his innocence by clear and convincing evidence. The opinion is fact-specific and cannot […]

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HERE PLAINTIFF HAD THE RIGHT-OF-WAY ENTERING AN INTERSECTION AND DEFENDANT FAILED TO YIELD; PLAINTIFFS WERE ENTITLED TO SUMMARY JUDGMENT ON LIABILITY AND DISMISSAL OF DEFENDANTS’ COMPARATIVE NEGLIGENCE AFFIRMATIVE DEFENSE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiffs in this intersection-accident case was entitled to summary judgment on liability and dismissal of defendants’ comparative negligence affirmative defense: “‘A driver who enters an intersection against a red traffic light in violation of Vehicle and Traffic Law § 1110(a) is negligent as a matter of law’” … […]

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THE BANK DID NOT PROVE DEFENDANT’S DEFAULT IN THIS FORECLOSURE ACTION; THE AVERMENTS ABOUT DEFENDANT’S DEFAULT WERE BASED UPON THE AFFIANT’S REVIEW OF BUSINESS RECORDS; BECAUSE THE RECORDS WERE NOT ATTACHED, THE AFFIDAVIT WAS INADMISSIBLE HEARSAY (SECOND DEPT).

The Second Department, reversing Supreme Court in this foreclosure action, determined plaintiff bank did not prove defendant’s default because the relevant business records were not attached to the affidavit describing the default: “Among other things, a plaintiff can establish a default by submission of an affidavit from a person having personal knowledge of the facts, […]

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