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Entries by Bruce Freeman

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THE EVIDENCE SUBMITTED IN SUPPORT OF DEFENDANT’S SUMMARY JUDGMENT MOTION, INCLUDING AN ATTORNEY AFFIDAVIT, WAS NOT IN ADMISSIBLE FORM, THE MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s (CCC’s) motion for summary judgment should not have been granted because the supporting evidence, including an attorney affidavit, was not in admissible form: The affirmation of CCC’s attorney was not based upon personal knowledge and, thus, was of no probative or evidentiary significance … . “The affidavit […]

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THE PROOF THE DEFENDANT WAS PROPERLY SERVED WAS NOT REBUTTED BY THE DEFENDANT’S UNSUBSTANTIATED ALLEGATIONS, SUPREME COURT REVERSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the proof that defendant was properly served with the summons and complaint was not rebutted by the defendant’s unsubstantiated allegations: “At a hearing to determine the validity of service of process, the burden of proving personal jurisdiction is upon the party asserting it, and that party must […]

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THE 90-DAY CONTRACTUAL STATUTE OF LIMITATIONS WAS VALID AND ENFORCEABLE; THE BREACH OF CONTRACT CAUSE OF ACTION WAS TIME-BARRED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the 90-day statute of limitation in the contract applied and the breach of contract cause of action was therefore time-barred. The construction contract required an action to be brought within 90 days of the completion of construction: … [An] “agreement which modifies the Statute of Limitations by […]

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DEFENDANT’S REQUEST FOR THE MISSING WITNESS JURY INSTRUCTION SHOULD HAVE BEEN GRANTED, CONVICTION REVERSED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined defendant’s request for a missing witness jury instruction should have been granted. Defendant was charged with contempt stemming from the violation of a protective order. It was alleged defendant pushed his former girlfriend to the ground in the presence of her date. Her date was subpoenaed by the […]

DEFENDANT HAS THE RIGHT TO BE PERSONALLY PRESENT AT RESENTENCING ABSENT WAIVER, RESENTENCE REVERSED (SECOND DEPT).

The Second Department, reversing defendant’s resentence, determined the right to be personally present at sentencing extends to resentencing: The defendant’s fundamental right to be “personally present at the time sentence is pronounced” (CPL 380.40[1]) extends to resentencing or to the  …amendment of a sentence … . While a defendant convicted of a felony may waive […]

NOTIFICATION OF AN INTENTION TO CANCEL AN AUTOMOBILE INSURANCE POLICY IF A QUESTIONNAIRE IS NOT SUBMITTED IS NOT A VALID CANCELLATION, THE POLICY REMAINED IN EFFECT DESPITE THE INSURED’S FAILURE TO SUBMIT THE QUESTIONNAIRE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the insurer’s (GEICO’s) purported cancellation of the automobile insurance policy was invalid for two reasons: (1) the notice of cancellation was insufficient; and (2) the reason for the cancellation was not among those allowed by the Insurance Law. GEICO notified the insured (Islam) the policy would be cancelled […]

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RESPONDENT IS A DANGEROUS SEX OFFENDER REQUIRING CONFINEMENT, NOT STRICT AND INTENSIVE SUPERVISION AND TREATMENT (SIST), SUPREME COURT REVERSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined respondent was a dangerous sex offender requiring confinement under the Mental Hygiene Law. Supreme Court had found respondent was entitled to release under strict and intensive supervision and treatment (SIST). Throughout the entirety of the respondent’s confinement and incarceration, he has never successfully completed any sex offender treatment […]

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ALTHOUGH THE VICTIM’S FACIAL SCARS WERE SHOWN TO THE JURY NO DESCRIPTION OF THE SCARS APPEARS IN THE TRIAL RECORD AND NO PHOTOGRAPH OF THE SCARS WAS INTRODUCED; THEREFORE THE SERIOUS DISFIGUREMENT ELEMENT OF ASSAULT FIRST WAS NOT DEMONSTRATED AND THE ASSAULT FIRST CONVICTION WAS AGAINST THE WEIGHT OF THE EVIDENCE; CONVICTION REDUCED TO ATTEMPTED ASSAULT FIRST (THIRD DEPT).

The Third Department, finding the assault first conviction to be against the weight of the evidence and reducing it to attempted assault first, determined the record of the evidence presented at trial did not support the serious disfigurement element in this knife attack case: The testimonial, photographic and documentary evidence demonstrated that the victim sustained […]

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DOCTRINE OF PRIMARY JURISDICTION PRECLUDED THIS CIVIL SUIT AGAINST OFFICERS OF THE UTILITY AFTER THE PUBLIC SERVICE COMMISSION DETERMINED PLAINTIFF’S ELECTRICITY HAD BEEN PROPERLY CUT OFF BY THE UTILITY BECAUSE PLAINTIFF HAD REPLACED THE METER (THIRD DEPT).

The Third Department determined the doctrine of primary jurisdiction precluded plaintiff’s lawsuit against former officers of the Central Hudson Gas & Electric Corporation. Plaintiff believed the digital encoder receiver transmitter (ERT) installed at his home by the utility to replace an analog meter emitted cancer-causing radiation. Plaintiff removed the ERT and replaced it with an […]

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POLICE OFFICER WAS JUSTIFIED IN FOLLOWING DEFENDANT’S CAR AFTER OBSERVING A TRAFFIC VIOLATION, DIRECTING THE OCCUPANTS OF THE CAR TO RETURN TO THE CAR AFTER IT PULLED INTO A RESIDENTIAL DRIVEWAY, AND DETAINING THE DEFENDANT AND CONDUCTING A SEARCH ON THE PROPERTY AFTER THE HOMEOWNER SAID HE DID NOT KNOW THE OCCUPANTS OF THE CAR (THIRD DEPT).

The Third Department determined the police officer acted properly in following the defendant’s car after observing a traffic violation, directing the occupants of the car to return to car after it pulled into a residential driveway, detaining the defendant when the homeowner said he did not know the defendant and the others, and arresting the […]

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