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Entries by Bruce Freeman

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FAMILY COURT RESOLVED CONFLICTING EVIDENCE AND CREDIBILITY ISSUES WITHOUT A HEARING, FAILED TO ACCEPT ALLEGATIONS IN A PRO SE MODIFICATION OF CUSTODY PETITION AS TRUE, IMPOSED A SANCTION FOR A VIOLATION OF A CUSTODY ORDER WHICH IS NOT ALLOWED BY THE CONTROLLING STATUTES, AND FAILED TO TAKE THE BEST INTERESTS OF THE CHILDREN INTO ACCOUNT (THIRD DEPT).

The Third Department, reversing Family Court, noted several errors in these proceedings which began with father’s violation of custody petitioner followed by two modification of custody petitions by mother. All the petitions were brought pro se. Family Court erred: (1) in dismissing mother’s modification petitions without a hearing; (2) in failing to accept as true […]

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LOCAL RESIDENTS OPPOSING THE USE OF A HOTEL AS A HOMELESS SHELTER RAISED A QUESTION OF FACT ABOUT WHETHER THE CONFIGURATION OF THE BUILDING WOULD ALLOW ADEQUATE ACCESS BY FIREFIGHTERS (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Singh, over a concurring opinion by Justice Oing, determined that the old Park Savoy Hotel was properly classified as a nontransient apartment hotel for use as a shelter for 150 employed or job-seeking men. However local residents, who brought an Article 78 proceeding objecting to the […]

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QUESTION WHETHER A CONTRACT WHICH IS SILENT ABOUT ITS DURATION WAS PROPERLY TERMINATED REQUIRED CONSIDERATION OF THE INTENT OF THE PARTIES AND COULD NOT BE RESOLVED BASED UPON THE PLEADINGS ALONE; DEFENDANT’S MOTION TO DISMISS THE COMPLAINT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant’s (Goldman Sachs’) motion to dismiss the complaint in this breach of contract action should not have been granted. The issue is whether a contract with is silent about its duration was properly terminated by Goldman. The issue requires consideration of the intent of the parties and could […]

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THE FAILURE TO MENTION THE JUSTIFICATION DEFENSE ON THE VERDICT SHEET WAS NOT PRESERVED FOR APPEAL BY AN OBJECTION AND THE INTEREST OF JUSTICE APPELLATE JURISDICTION WILL NOT BE INVOKED WHERE THERE WAS AMPLE OPPORTUNITY TO OBJECT (FIRST DEPT).

The First Department determined defendant did not preserve the issue concerning the adequacy of the verdict sheet which did not mention the justification defense. Defendant was acquitted of the top counts (attempted murder and assault first) and convicted of assault second. The jury was instructed not to consider the lesser counts if the justification defense […]

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THE RECORD WAS NOT SUFFICIENT FOR CONSIDERATION OF THE INEFFECTIVE ASSISTANCE ARGUMENT RE WHETHER DEFENDANT WAS ADEQUATELY INFORMED OF THE DEPORTATION CONSEQUENCES OF HIS GUILTY PLEA; THE PRECISE NATURE OF COUNSEL’S ADVICE WAS NOT IN THE RECORD; TWO-JUSTICE DISSENT (FIRST DEPT).

The First Department, over a two-justice dissent, determined the record was insufficient to preserve the ineffective assistance of counsel argument. The defendant argued that he was insufficiently informed about the deportation-risk associated with his guilty plea. The majority held that the record did not reflect the precise advice given by counsel and therefore the appropriate […]

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ALTHOUGH PETITIONER DEMONSTRATED THE INMATE LACKED THE CAPACITY TO MAKE A REASONED DECISION ABOUT THE PROPOSED TREATMENT FOR SCHIZOPHRENIA, PETITIONER DID NOT DEMONSTRATE THE PROPOSED TREATMENT WAS NARROWLY TAILORED TO THE INMATE’S NEEDS (SECOND DEPT).

The Second Department, remitting the matter, determined that, although it was demonstrated the inmate lTyrone) lacked the capacity to make a reasoned decision about his treatment for schizophrenia, the petitioner did not demonstrate the proposed treatment was narrowly tailored to the inmate’s needs: When seeking to administer a course of medication to a patient without that […]

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IN LIGHT OF THE REVERSAL BY THE COURT OF APPEALS, PLAINTIFF HOME HEALTH CARE AIDES WERE NOT ENTITLED TO CLASS CERTIFICATION ON THE QUESTION WHETHER THEY SHOULD BE PAID FOR THE SLEEP AND BREAK HOURS DURING 24-HOUR SHIFTS (SECOND DEPT).

The Second Department, on remittal after reversal by the Court of Appeals, determined plaintiffs, home health care aides,  were not entitled to class certification on the question whether they were entitled to be paid for the sleep and break hours during 24-hour shifts. The Court of Appeals ruled that the NYS Department of Labor’s (DOL’s) finding […]

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DEFENDANT OFFERED MORE TO SETTLE THE ACTION THAN WAS AWARDED PLAINTIFF AFTER TRIAL; DEFENDANT WAS THEREFORE ENTITLED TO ATTORNEY’S FEES PURSUANT TO CPLR 3220 (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined defendant was entitled to attorney’s fees pursuant to CPLR 3220 in this breach of contract action. The defendant offered $950,000 to settle the action before trial and the plaintiff was awarded about $525,000: CPLR 3220 provides, in relevant part, that, in an action to recover damages for […]

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PLAINTIFF BICYCLIST RAN INTO THE BACK OF DEFENDANT’S STOPPED OR STOPPING CAR; DEFENDANT DRIVER’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the action by plaintiff-bicyclist against defendant-driver should have been dismissed. Plaintiff ran into the back of defendant’s car as defendant was stopped or was stopping to park: Vehicle and Traffic Law section 1231 provides that every bicyclist is “subject to all of the duties applicable to the driver […]

APPELLANT WAS NOT AN AGENT OF THE GENERAL CONTRACTOR OR OWNER, DID NOT SUPERVISE AND CONTROL PLAINTIFF’S WORK AND DID NOT HAVE CONTROL OVER THE WORK SITE; THEREFORE THE LABOR LAW 240(1), 241(6) AND 200 CAUSES OF ACTION SHOULD HAVE BEEN DISMISSED IN THIS CONSTRUCTION-DEBRIS-SLIP-AND-FALL CASE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the appellant, which was hired by the construction manager to put in concrete steps, was bit an agent of the general contractor or the owner and did not exercise supervisory control plaintiff’s work in this Labor Law 200, 240(1) and 241(6) action. Plaintiff worked for an HVAC contractor […]

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