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Entries by Bruce Freeman

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ALTHOUGH THE INCONSISTENT VERDICT ARGUMENT WAS NOT PRESERVED, THE FAILURE TO AWARD DAMAGES FOR FUTURE PAIN AND SUFFERING, IN THE FACE OF AWARDING DAMAGES FOR PAST PAIN AND SUFFERING AND FUTURE MEDICAL EXPENSES, REQUIRED A NEW TRIAL ON THAT ISSUE (FIRST DEPT).

The First Department, setting aside the verdict for future damages and ordering a new trial on that issue, determined the awards for past pain and suffering and future medical expenses rendered the failure to award damages for future pain and suffering a material deviation from reasonable compensation: Plaintiff failed to preserve for appellate review his […]

SUPREME COURT SHOULD HAVE RESTRICTED THE RELEASE OF THE NAMES OF COMPLAINANTS AND COMPLAINANTS’ PARENTS FOR THEIR PROTECTION (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined Supreme Court should have restricted the release of the names of complainants and their parents for their protection: … [T]he application by the People pursuant to CPL 245.70(6) is granted to the extent that the order … is modified by directing that the disclosure of the names […]

DEFENDANT INSURER’S MOTION FOR SUMMARY JUDGMENT DISMISSING THE “BAD FAITH” COMPLAINT–ALLEGING A BAD FAITH FAILURE TO SETTLE PLAINTIFF’S PERSONAL INJURY ACTION STEMMING FROM A TRAFFIC ACCIDENT–SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant insurer demonstrated it did not act in bad faith when it refused to settle a personal injury action. Plaintiff VanNostrand sued Froelich in an action stemming from a traffic accident and recovered a $300,000 verdict. Froelich’s insurer, defendant New York Central Mutual Fire Insurance Company, had refused to […]

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A SINGLE PROMOTING PRISON CONTRABAND CONVICTION FOUR YEARS BEFORE DID NOT SUPPORT A TEN POINT ASSESSMENT FOR UNSATISFACTORY CONDUCT; RISK LEVEL REDUCED FROM TWO TO ONE (SECOND DEPT).

The Second Department determined the 10 point assessment for unsatisfactory conduct was not supported and reduced defendant’s risk level from two to one: … [T]he record does not contain clear and convincing evidence to support the assessment of 10 points under risk factor 13, for “unsatisfactory” conduct while confined, based upon his conviction of the […]

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ROBBERY AND ASSAULT SECOND CONVICTIONS WERE AGAINST THE WEIGHT OF THE EVIDENCE BECAUSE OF THE WEAKNESS OF THE EVIDENCE OF PHYSICAL INJURY (SECOND DEPT).

The Second Department, reducing defendant’s convictions, determined the robbery and assault second degree convictions were against the weight of the evidence because of the weakness of the evidence of physical injury. The convictions were reduced to robbery and assault third degree: “Physical injury” is defined as “impairment of physical condition or substantial pain” (Penal Law […]

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ALTHOUGH THE EVIDENCE WAS DEEMED LEGALLY SUFFICIENT TO SUPPORT THE CONVICTIONS STEMMING FROM AN ATTACK ON THE COMPLAINANT, THOSE CONVICTIONS WERE DEEMED AGAINST THE WEIGHT OF THE EVIDENCE BECAUSE OF THE WEAKNESS OR ABSENCE OF IDENTIFICATION EVIDENCE (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined: (1) the evidence of a sexual touching of complainant by defendant captured on video in the laundromat was legally insufficient; (2) the evidence that defendant attacked the complainant after she left the laundromat was legally sufficient; (3) but the convictions stemming from the attack on the complainant after […]

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CO-DEFENDANT’S REDACTED STATEMENT SHOULD NOT HAVE BEEN ALLOWED IN EVIDENCE, NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined the co-defendant’s redacted admission should not have been admitted in evidence: … [W]e agree with the defendant that, under the instant circumstances, the Supreme Court’s admission of codefendant Jason Villanueva’s redacted statement to the police violated the rule articulated in Bruton v United States (391 US 123), because the subject […]

NATURE OF AN INGRESS AND EGRESS EASEMENT EXPLAINED (SECOND DEPT).

The Second Department discussed the elements of an easement for ingress and egress only: “Express easements are governed by the intent of the parties” … . “As a [result], where the intention in granting an easement is to afford only a right of ingress and egress, it is the right of passage, and not any […]

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THE CIVIL SERVICE LAW, NOT THE COLLECTIVE BARGAINING AGREEMENT, CONTROLS THE TERMINATION OF AN INJURED FIREFIGHTER ABSENT FOR MORE THAN A YEAR DUE TO THE INJURY (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the Civil Service Law, not the collective bargaining agreement, controlled the termination of an injured firefighter who had been absent for more than a year due to the injury: Civil Service Law § 71 provides that where an employee has been separated from the service by reason of a […]

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