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Entries by Bruce Freeman

DEPARTMENT OF HEALTH PROPERLY DENIED THE FOIL REQUEST FOR CERTAIN DOCUMENTS ON THE GROUND THE DOCUMENTS WERE NOT ‘REASONABLY DESCRIBED’ (THIRD DEPT).

The Third Department determined the respondent’s (NYS Department of Health’s) denial of petitioners’ request for certain documents relating to respondents’ communications with Ancestry.com concerning death records was properly denied on the ground the requested documents were not “reasonably described” such that they could be located with a “reasonable effort:” … [R]espondent established that its indexing […]

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THE EX PARTE ORDER ALLOWING THE PROSECUTOR TO SEIZE AND READ DEFENDANT’S NON-LEGAL MAIL DID NOT REQUIRE DISQUALIFICATION OF THE PROSECUTOR OR A MISTRIAL; THE PROSECUTOR’S DEMONSTRATION OF THE OPERATION OF THE MURDER WEAPON (A KNIFE) DID NOT WARRANT A MISTRIAL; AND THE FAILURE TO NOTIFY THE COURT AND THE ATTORNEYS OF THE JURY NOTE REQUESTING THE EXAMINATION OF THE KNIFE WAS NOT AN O’RAMA VIOLATION AND DID NOT WARRANT A MISTRIAL (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Oing, affirmed defendant’s murder conviction after addressing several unusual issues in depth: (1) The prosecutor obtained a ex parte order allowing the opening and reading of defendant’s non-legal mail to determine whether defendant was threatening an eyewitness. After reading two batches of mail, the prosecutor determined […]

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AN ARTICLE 78 REVIEW OF THE RESPONSE TO A FOIL REQUEST MAY ONLY CONSIDER THE GROUND FOR THE INITIAL AGENCY DECISION; THE GROUNDS FOR A SUBSEQUENT DECISION ISSUED AFTER THE ARTICLE 78 PROCEEDING WAS COMMENCED SHOULD NOT HAVE BEEN CONSIDERED; PETITIONER’S REQUEST FOR THE METADATA OF THE DISCLOSED DOCUMENTS MUST BE DENIED BECAUSE METADATA WAS NOT ‘REASONABLY DESCRIBED’ IN THE FOIL REQUEST (FIRST DEPT).

The First Department, reversing Supreme Court, determined the Article 78 review must be confined to the ground asserted in the agency’s initial FOIL decision and could not consider the grounds asserted in the agency’s subsequent decision issued after petitioner brought the Article 78 proceeding. The ground for the initial decision had been abandoned in the second decision. […]

DEFENDANT’S SENTENCE REDUCED TO TIME-SERVED BASED UPON HIS HEALTH (FIRST DEPT).

The First Department reduced defendant’s sentence for assault second, aggravated harassment and criminal possession of a weapon based upon defendant’s health: The trial evidence established that the defendant engaged in a 10-month campaign of harassment, wherein he terrorized the attorneys and two female staff at the law firm representing his wife in divorce proceedings. The […]

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DEFENDANT DID NOT DEMONSTRATE IT DID NOT CREATE THE DANGEROUS CONDITION AND DID NOT DEMONSTRATE IT DID NOT HAVE KNOWLEDGE OF THE CONDITION; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant’s (Stop 1’s) motion for summary judgment in this slip and fall case should not have been granted. The decision does not describe the facts but apparently rainfall had something to do with the fall: Defendant (Stop 1) did not meet its initial burden of demonstrating “that it […]

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WHETHER THE TRAFFIC ACCIDENT INVOLVING A SALT-SPREADING TRUCK OCCURRED ON A PUBLIC OR PRIVATE PARKING LOT AFFECTED THE APPROPRIATE STANDARD OF CARE UNDER THE VEHICLE AND TRAFFIC LAW, PROOF ON THAT ISSUE SHOULD HAVE BEEN ALLOWED; DEFENDANTS’ ACCIDENT RECONSTRUCTIONIST SHOULD HAVE BEEN ALLOWED TO TESTIFY; THE $12 MILLION VERDICT WAS PROPERLY SET ASIDE AS EXCESSIVE (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined a new trial was necessary on both liability and damages in this traffic accident case. Supreme Court had found the $12,000,000 verdict excessive and had ordered a new damages trial. The accident occurred in a parking lot at LaGuardia Airport during a snowfall and involved a salt-spreading […]

PLAINTIFF COULD NOT MOVE TO DISQUALIFY LAW FIRMS WHICH NEVER REPRESENTED PLAINTIFF (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff did not have standing to move to disqualify two law firms (SZA and ABZ), one of which represented defendant, on conflict of interest grounds in this foreclosure/property-ownership dispute because neither law firm ever represented plaintiff. Apparently there was some overlap of personnel in the two law firms: […]

THE CASINO WHERE PLAINTIFF WAS DRINKING WITH THE MAN WHO ASSAULTED HER AFTER SHE LEFT THE CASINO DID NOT OWE A DUTY TO PLAINTIFF AFTER SHE LEFT THE PREMISES (SECOND DEPT).

The Second Department determined the defendant casino’s motion for summary judgment in this third-party assault case was properly granted. Plaintiff alleged she was drinking in defendant casino and left with the man who had brought her drinks. The man sexually assaulted the plaintiff in a car: A cause of action alleging negligence “must be founded upon […]

THE DEMONSTRATION THAT THE APPELLANTS’ VEHICLE WAS STOPPED WHEN IT WAS STRUCK FROM BEHIND WAS SUFFICIENT TO WARRANT SUMMARY JUDGMENT IN APPELLANTS’ FAVOR (SECOND DEPT).

The Second Department, reversing Supreme Court, determined appellants’ motion for summary judgment in this rear-end collision case should have been granted. Appellants demonstrated their vehicle was stopped when it was struck from behind by a vehicle driven by Bruce. Bruce’s assertion that appellant’s vehicle made a sudden stop was not sufficient to raise a question of […]

DEFENDANT DID NOT DEMONSTRATE THE RUNG ON THE SIDE OF A DUMPSTER, WHICH WAS ALLEGED TO HAVE CAUSED PLAINTIFF’S SLIP AND FALL, WAS NOT DANGEROUS, AND DID NOT DEMONSTRATE IT DID NOT HAVE CONSTRUCTIVE NOTICE OF THE CONDITION; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that defendant’s motion fore summary judgment in this slip and fall case should not have been granted. Plaintiff alleged he slipped and fell because the top rung on the side of a dumpster was bent: … [T]he defendant failed to establish its prima facie entitlement to judgment as […]

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