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Entries by Bruce Freeman

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RULING THAT DEFENDANT COULD BE CROSS-EXAMINED ABOUT THREE PRIOR GUN-RELATED CONVICTIONS IF HE TESTIFIED THE SHOOTING WAS AN ACCIDENT DID NOT DEPRIVE DEFENDANT OF THE RIGHT TO PUT ON A DEFENSE; TWO DISSENTERS DISAGREED (SECOND DEPT).

The Second Department, affirming defendant’s murder conviction, over a two-justice dissent, determined Molineux the ruling that defendant could be cross-examined about his three prior gun-related convictions if he were to testify the shooting was an accident did not deprive defendant of the right to put on a defense. The dissenter argued that it did: Prior […]

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ALTHOUGH AURELIA S WAS PROPERLY FOUND TO BE AN INCAPACITATED PERSON, THE POWERS AWARDED THE GUARDIAN WERE TOO BROAD (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the powers awarded to the guardian of the incapacitated person, Aurelia S, were too broad: … “[T]he determination of incapacity . . . shall consist of a determination that a person is likely to suffer harm because” (1) “the person is unable to provide for [his or her] […]

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BANK DID NOT COMPLY WITH THE NOTICE REQUIREMENTS OF RPAPL 1304 IN THIS FORECLOSURE ACTION; THE BANK’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank’s motion for summary judgment should not have been granted in this foreclosure action because compliance with the notice requirements of RPAPL 1304 was not demonstrated: RPAPL 1304 provides that at least 90 days before a lender, an assignee, or a mortgage loan servicer commences an action […]

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THE ISSUE ON A PRIOR APPEAL WAS WHETHER THE MOTION TO AMEND THE COMPLAINT SHOULD HAVE BEEN GRANTED; THE ISSUE HERE IS WHETHER THE MOTION TO DISMISS THE COMPLAINT SHOULD BE GRANTED; THE ISSUES ARE DIFFERENT AND THE LAW OF THE CASE DOCTRINE DOES NOT APPLY (SECOND DEPT).

The Second Department determined a prior appeal in this matter did not trigger the law of the case doctrine: … Supreme Court’s determination that certain causes of action should be dismissed pursuant to CPLR 3211(a) was not precluded by this Court’s determination on a prior appeal that similar causes of action were not palpably insufficient […]

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TOWN LAW PREEMPTED BY STATE LAW RE THE DISCHARGE SETBACK FOR A BOW AND ARROW (SECOND DEPT).

The Second Department determined the town ordinance regulating the discharge setback for a bow and arrow was preempted by the conflicting provisions in Environmental Conservation Law (ECL) 11-0931: The Town incorrectly contends that its ability to regulate the discharge setback of a bow and arrow is expressly authorized by Town Law § 130(27). That statute […]

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THE STATE HIGHWAY LAW MAY HAVE IMPOSED A DUTY ON THE TOWN TO MAINTAIN THE SIDEWALK IN THIS SLIP AND FALL CASE; IN ADDITION, THE TOWN DID NOT DEMONSTRATE IT DID NOT HAVE WRITTEN NOTICE OF THE ALLEGED DEFECT AND DID NOT DEMONSTRATE THE DEFECT WAS TRIVIAL; THE TOWN’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the that action against the abutting landowner (Long Island Rail Road [LIRR} and Metropolitan Transportation Authority [MTA] in this sidewalk slip and fall case was properly dismissed, but the action against the Town should not have been dismissed. Notwithstanding the Town Code, the state Highway Law may […]

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THE DEFENSE DID NOT NEED TO PROVIDE PLAINTIFF WITH “EXPERT-OPINION” NOTICE OF ITS INTENT TO CALL PLAINTIFF’S TREATING PHYSICIAN TO TESTIFY THAT PLAINTIFF’S COGNITIVE DEFICITS WERE THE RESULT OF A PRIOR STROKE, NOT THE TRAFFIC ACCIDENT; THE DOCTOR’S TESTIMONY SHOULD NOT HAVE BEEN PRECLUDED AND THE $2,000,000 VERDICT SHOULD HAVE BEEN SET ASIDE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined there was no need for the defendants to give prior notification to the plaintiff of the defendants’ intent to call one of plaintiff’s treating doctors to testify about the cause of plaintiff’s cognitive deficits in this traffic accident case. The doctor would have testified the deficits were caused by […]

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THE BANK’S COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 1303 AND 1304 WAS NOT DEMONSTRATED IN THIS FORECLOSURE ACTION, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN AWARDED TO THE BANK (SECOND DEPT).

The Second Department determined plaintiff bank’s motion for summary judgment should not have been granted in this foreclosure action. There was a question of fact whether plaintiff complied with the notice requirements of Real Property Actions and Proceedings Law (RPAPL) 1303, and plaintiff did not establish it complied with the notice requirements of RPAPL 1304: […]

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THE MAJORITY DID NOT CONSIDER THE ARGUMENT DEFENDANT WAS NOT ADEQUATELY INFORMED OF THE RIGHTS HE WAS GIVING UP BY PLEADING GUILTY BECAUSE THE ISSUE WAS NOT PRESERVED; THE TWO-JUSTICE DISSENT ARGUED THE APPEAL SHOULD BE CONSIDERED IN THE INTEREST OF JUSTICE AND THE CONVICTION REVERSED (THIRD DEPT). ​

The Third Department, over a two-justice dissent, determined defendant’s assertion that he was not adequately informed of the rights he was giving up by pleading guilty was not preserved for appeal. The dissent argued the court should consider the appeal under its interest of justice jurisdiction and reverse the conviction: Defendant also asserts that his […]

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