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Entries by Bruce Freeman

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THE REQUIREMENT IN THE LONG-TERM SOLITARY CONFINEMENT ACT (HALT ACT) THAT A HEARING BE HELD WITHIN FIVE DAYS OF PLACING AN INMATE IN A SEGREGATED HOUSING UNIT (SHU) IS “DIRECTORY,” NOT MANDATORY; THEREFORE ANY ISSUE RELATED TO A DELAY IN HOLDING THE HEARING MUST BE PRESERVED FOR REVIEW AND THE INMATE MUST DEMONSTRATE PREJUDICE CAUSED BY THE DELAY (THIRD DEPT).

The Second Department, in a full-fledged opinion by Justice McShan, determined the requirement that, under the Long-Term Solitary Confinement Act (HALT Act), a disciplinary hearing be held within five days of an inmate’s placement in a segregated housing (SHU) is directory, not mandatory. Therefore the issue must be preserved for review and the inmate must […]

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THE GOVERNOR’S EMERGENCY COVID-19 TOLLS OF STATUTES OF LIMITATIONS EXTENDED THE TWO-YEAR WINDOW FOR FILING CHILD VICTIMS ACT (CVA) CAUSES OF ACTION BY 228 DAYS (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Voutsinas, determined the amendment of the Child Victims Act (CVA), which enlarged to window for filing otherwise time-barred actions, did not supersede the governor’s COVID-19 executive orders tolling statutes of limitations. Therefore two-year window for filing CVA actions was extended by the 228-day COVID-19 tolls and […]

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PURSUANT TO THE RES IPSA LOQUITUR DOCTRINE, THERE IS A QUESTION OF FACT WHETHER EPIDURAL INJECTIONS WERE DONE NEGLIGENTLY; THE FACT THAT PLAINTIFF SIGNED A CONSENT FORM WAS NOT SUFFICIENT TO WARRANT SUMMARY JUDGMENT ON THE LACK OF INFORMED CONSENT CAUSE OF ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendants’ motions for summary judgment in this medical malpractice and lack of informed consent action should not have been granted. The plaintiff raised a question of fact re: medical malpractice under the res ipsa loquitur doctrine. And the fact that plaintiff signed a consent form was not […]

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NONE OF DEFENDANT’S CONVICTIONS STOOD UP TO APPELLATE SCRUTINY; THE GRAND LARCENY AND CRIMINAL IMPERSONATION CONVICTIONS WERE AGAINST THE WEIGHT OF THE EVIDENCE; THE COUNTS CHARGING SCHEME TO DEFRAUD AND APPEARING AS AN ATTORNEY WITHOUT BEING ADMITTED WERE DISMISSED AS DUPLICITOUS (SECOND DEPT).

The Second Department reversed the grand larceny and criminal impersonation counts, with the People’s consent, under a weight-of-the-evidence analysis. The proof demonstrated the grand larceny counts failed because the “victims” voluntarily gave defendant the money. The criminal impersonation counts failed because the defendant did not impersonate a “real person.” The scheme to defraud and “appearing […]

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DEFENSE COUNSEL WAS UNAVOIDABLY DELAYED IN GETTING TO COURT AND SO INFORMED THE JUDGE; IN DEFENSE COUNSEL’S ABSENCE A JUROR REQUESTED TO BE DISCHARGED BECAUSE OF THE SUDDEN DEATH OF HER FRIEND’S SON; THE DISCHARGE OF THE JUROR WITHOUT DEFENSE COUNSEL’S CONSENT REQUIRED REVERSAL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defense motion for a mistrial should have been granted. Defense counsel, because of a child-care issue, informed the court she could not be there at 9 am but would arrive at court later in the morning. While defense counsel was absent, a juror requested to be discharged […]

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PLAINTIFF ATTEMPTED TO MOVE A SCAFFOLD WHILE STANDING ON IT AND IT FELL OVER; PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) AND 241(6) CAUSES OF ACTION (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined plaintiff was entitled to summary judgment on the Labor Law 240(1) cause of action. Plaintiff was standing on a Baker scaffold, attempting to move it, when it toppled over. The scaffold did not have safety railings and plaintiff was not provided with any safety equipment.. Plaintiff’s comparative […]

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UNDER THE FORECLOSURE ABUSE PREVENTION ACT (FAPA), A DEFENDANT CAN RENEW A SUMMARY JUDGMENT MOTION AFTER A JUDGMENT OF FORECLOSURE AND AFTER THE TIME FOR APPEAL HAS EXPIRED AS LONG AS THE SALE HAS NOT YET BEEN CONDUCTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the defendant’s motion for renewal of its summary judgment motion in this foreclosure proceeding should have been granted. The motion was based upon the retroactive application of the Foreclosure Abuse Prevention Act (FAPA). Renewal should be granted after a judgment of foreclosure and after the time for appeal […]

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ALTHOUGH THE EVIDENCE WAS DEEMED LEGALLY SUFFICIENT, THE EVIDENCE OF THE INTENT TO COMMIT ASSAULT SECOND, WHICH INVOLVED INJURY TO POLICE OFFICERS, DID NOT SURVIVE A WEIGHT-OF-THE-EVIDENCE ANALYSIS; THE TWO JUVENILES WERE FIXATED SOLEY UPON FIGHTING EACH OTHER THROUGHOUT THE BRIEF INCIDENT (FIRST DEPT). ​

The First Department, reversing (modifying) Family Court in this juvenile delinquency proceeding, in a full-fledged opinion by Justice Rodriguez, determined the assault second adjudications were not supported by the weight of the evidence. Two juveniles were fighting each other and police officers were injured trying to break-up the fight. The First Department found that, because […]

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PLAINTIFF WAS STRUCK BY A STEEL BAR WHICH FELL DURING AN ATTEMPT TO HOIST IT WITH EXCAVATING EQUIPMENT; PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION; PLAINTIFF DID NOT NEED TO DEMONSTRATE THE EXACT CAUSE FOR THE BAR’S FALLING, NOR DID HE NEED TO SPECIFY THE EQUIPMENT WHICH SHOULD HAVE BEEN USED (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on the Labor Law 240(1) cause of action. Plaintiff was struck by a steel bar which apparently fell over as it was about to be hoisted by an excavation machine. Plaintiff did not need to demonstrate the exact circumstances under which the […]

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THE TRANSGENDER PETITIONER’S REQUEST TO SEAL THE RECORDS OF THE NAME-CHANGE PROCEEDINGS SHOULD HAVE BEEN GRANTED; CRITERIA EXPLAINED (THIRD DEPT).

The Third Department, reversing Supreme Court’s denial of petitioner’s request to seal the court records, determined petitioner’s transgender status justified the sealing of the records of the name-change proceedings: … “[W]hether to grant or deny a sealing request under Civil Rights Law § 64-a depends solely upon the potential for harm to the applicant arising […]

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