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Entries by Bruce Freeman

TREE-CUTTING IS A COVERED ACTIVITY PURSUANT TO LABOR LAW 240 (1) AND 241 (6) IF DONE IN CONNECTION WITH A COVERED CONSTRUCTION PROJECT (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined defendant’s motion for summary judgment on plaintiff’s Labor 240 (1) should not have been granted, defendant’s motion for summary judgment on plaintiff’s Labor Law 241 (6) cause of action was properly denied, and defendant’s motion for summary judgment on plaintiff’s Labor Law 200 cause of action should […]

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THE DEFENDANT’S SIGNATURE ON THE PRENUPTIAL AGREEMENT WAS NOT ACKNOWLEDGED UNTIL RIGHT BEFORE THE DIVORCE PROCEEDINGS, SEVEN YEARS AFTER PLAINTIFF’S SIGNATURE ON THE AGREEMENT WAS ACKNOWLEDGED; IN THIS CIRCUMSTANCE, THE PRENUPTIAL AGREEMENT MUST BE MUTUALLY REAFFIRMED TO BE VALID (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, over a two-justice dissent, determined the prenuptial agreement was not valid and enforceable. The agreement was not acknowledged in front of a notary in 2011 by the defendant. Plaintiff had signed and acknowledged the agreement in 2011. Seven years later, right before the divorce proceedings, defendant had his signature acknowledged […]

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PLAINTIFF’S HOMEOWNER’S POLICY EXCLUDED COVERAGE FOR INTENTIONAL ACTS; THEREFORE THE INSURER WAS NOT OBLIGATED TO DEFEND PLAINTIFF IN A SUIT STEMMING FROM AN ALLEGED ASSAULT BY PLAINTIFF ON HIS NEIGHBOR (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant insurer was not obligated to defend plaintiff (pursuant to plaintiff’s homeowner’s policy) because the injuries stemmed from an apparent assault by plaintiff on his neighbor (Salerno) and therefore involved intentional, not negligent, acts. The policy excluded coverage for injuries resulting from intentional acts. Salerno sued plaintiff in tort: […]

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THE SOLAR ARRAY IS ATTACHED TO THE COLLEGE’S LAND AND IS THEREFORE TAXABLE REAL PROPERTY; THE ARRAY IS OWNED BY THE INSTALLER, NOT THE COLLEGE, AND IS THEREFORE NOT EXEMPT FROM TAXATION (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined that the solar array installed on petitioner-college’s land was owned by the installer, Argos, not the college, and is taxable as real property because it is permanently attached to the land: Respondents contend that the system constitutes taxable real property under RPTL 102 (12) (b). We agree. Pursuant […]

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THE ORAL STIPULATION OF SETTLEMENT IN THIS DIVORCE ACTION IS INVALID AND UNENFORCEABLE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, over a dissent, determined the oral stipulation of settlement in this divorce action is invalid and unenforceable. The dissent argued defendant wife was not aggrieved because the parties contentions were resolved by the stipulation which was incorporated into the judgment of divorce: … [T]he parties placed on the record […]

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NOTWITHSTANDING ANY PRECEDENT TO THE CONTRARY, THE APPELLATE DIVISION CAN REVIEW THE RECORD OF A TRIAL AND FIND THE VERDICT UNSUPPORTED BY THE FACTS DESPITE THE ABSENCE OF A MOTION TO SET ASIDE THE VERDICT; HERE THE RECORD IN THIS TRAFFIC ACCIDENT CASE DID NOT SUPPORT THE FINDING THAT THE DRIVER OF A NEW YORK STATE THRUWAY DUMP TRUCK ACTED RECKLESSLY BY PARKING THE TRUCK ON THE SHOULDER OF THE THRUWAY (FOURTH DEPT).

The Fourth Department, refusing to follow any decisions to the contrary, determined, despite the defendant’s failure to make a motion to set aside the verdict, the appellate court may review the record and render a judgment warranted by the facts. The Fourth Department, over a two-justice dissent, reversed the plaintiffs’ verdict in this traffic accident […]

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CLAIMANT’S PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN THIS STUDENT-ON-STUDENT ASSAULT CASE SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined claimant’s petition for leave to file a late notice of claim on the school district in this student-on-student third-party assault case should not have been granted: ” In determining whether to grant such leave, the court must consider, inter alia, whether the claimant has shown a reasonable excuse […]

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DEFENDANT WAS ARRESTED BY OFFICERS WHO BELIEVED HE WAS DEFENDANT’S BROTHER FOR WHOM THERE WERE OUTSTANDING ARREST WARRANTS; THE PEOPLE FAILED TO MEET THEIR BURDEN OF GOING FORWARD AT THE SUPPRESSION HEARING BECAUSE THEY FAILED TO PROVE THE EXISTENCE AND VALIDITY OF THE ARREST WARRANTS (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction and dismissing the indictment, over a two-justice dissent, determined defendant’s motion to suppress the weapon seized from after he fled the police should have been granted. At the suppression hearing the officers testified they thought defendant was defendant’s brother and approached defendant because they aware of outstanding warrants for […]

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THE JURY SHOULD HAVE BEEN INSTRUCTED TO CONSIDER THE INCLUSORY CONCURRENT COUNT (MURDER SECOND) AND THE TOP COUNT (MURDER FIRST) IN THE ALTERNATIVE; THE ERROR NEED NOT BE PRESERVED FOR APPEAL (FOURTH DEPT).

The Fourth Department, noting that the issues need not be preserved for appeal, determined the jury should have been instructed to consider the top count, murder first degree, and the inclusory concurrent count, murder second degree, in the alternative: … [T]he court should have instructed the jury to consider count two “only in the alternative […]

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DEFENDANT WAS NOT INFORMED OF THE DEPORTATION CONSEQUENCES OF HIS GUILTY PLEA, MATTER REMITTED TO GIVE DEFENDANT THE OPPORTUNITY TO WITHDRAW HIS PLEA; MATTER CONSIDERED IN THE INTEREST OF JUSTICE; INEFFECTIVE ASSISTANCE ISSUE DEPENDS ON MATTERS OUTSIDE THE RECORD AND CAN ONLY BE ADDRESSED BY A MOTION TO VACATE (FOURTH DEPT).

The Fourth Department, remitting that matter to allow defendant to move to withdraw his guilty plea, considering the issue in the interest of justice, determined defendant was not informed of the deportation consequences of pleading guilty. Because the ineffective assistance claim depends in part on matters outside the record, it can only be addressed in […]

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