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Entries by Bruce Freeman

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THE LANDLORD AND PROPERTY MANAGER DEMONSTRATED THE POWER-OPERATED DOOR WHICH ALLEGEDLY STRUCK PLAINTIFF WAS NOT DEFECTIVE AND THEY HAD NO NOTICE OF ANY DEFECTS (SECOND DEPT).

The Second Department determined the landlord (North Shore Towers) and the property manager (Greenthal Management) demonstrated the power-operated door which allegedly struck plaintiff as she walked through the doorway was not defective. Therefore the defendants’ motion for summary judgment was properly granted: A landowner has a duty to maintain its property in a reasonably safe condition […]

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WATER VALVE CAP OVER WHICH INFANT PLAINTIFF TRIPPED AND FELL WHILE PLAYING BASKETBALL IN THE STREET WAS A TRIVIAL DEFECT AS A MATTER OF LAW (SECOND DEPT). ​

The Second Department, affirming Supreme Court but on different grounds, determined the water valve cap over which infant plaintiff allegedly slipped (tripped) and fell while playing basketball in the street was a nonactionable trivial defect. Supreme Court had granted the city’s motion for summary judgment on the ground the city did not receive written notice of […]

CONTRACTOR WHICH WAXED THE FLOOR WHERE PLAINTIFF ALLEGEDLY SLIPPED AND FELL DID NOT OWE PLAINTIFF A DUTY OF CARE BECAUSE IT WAS NOT DEMONSTRATED THE CONTRACTOR LAUNCHED AN INSTRUMENT OF HARM (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the contractor which waxed the floor where plaintiff allegedly slipped and fell did not owe a duty of care to the plaintiff because it was not demonstrated the contractor launched an instrument of harm (Espinal factor): “Because a finding of negligence must be based on the breach of […]

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CAUSES OF ACTION FOR WRONGFUL EVICTION AND TRESPASS WERE PROPERLY ALLEGED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the causes of action against all but two of the defendants should have been dismissed. Defendant alleged she had an arrangement with the landlord which allowed her to stay in the basement of the premises rent-free in exchange for maintenance of the property. When the landlord died, the […]

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DESPITE HAVING MADE A PRIOR MOTION TO VACATE HIS CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS, DEFENDANT WAS ENTITLED TO A HEARING ON THE INSTANT MOTION WHICH WAS SUPPORTED BY AN AFFIDAVIT BY HIS ATTORNEY WHO ACKNOWLEDGED HE TOLD DEFENDANT A GUILTY PLEA WOULD NOT RESULT IN DEPORTATION (THIRD DEPT).

The Third Department, reversing County Court, determined defendant was entitled to a hearing on his motion to vacate his conviction on ineffective assistance grounds. The fact that defendant had made a similar motion which was denied did not preclude the instant motion which, unlike the prior motion, was supported by an affidavit from the attorney who […]

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ALL THE ITEMS IN DEFENDANT’S CAR WERE NOT LISTED IN A WRITTEN INVENTORY, IN VIOLATION OF THE POLICE DEPARTMENT’S INVENTORY-SEARCH POLICY; THEREFORE THE FIREARM WAS NOT FOUND DURING A VALID INVENTORY SEARCH AND SHOULD HAVE BEEN SUPPRESSED (THIRD DEPT).

The Third Department, reversing Supreme Court, over a dissent, determined the firearm seized from defendant’s car before the car was towed from a crash scene was not found in a valid inventory search. No written inventory was created. The Third Department held that, under the Albany Police inventory search policy, which the court found reasonable, […]

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GRAND JURY EVIDENCE WAS LEGALLY SUFFICIENT IN THIS AGGRAVATED UNLICENSED OPERATION CASE; THE INDICTMENT SHOULD NOT HAVE BEEN DISMISSED (THIRD DEPT).

The Third Department, reversing County Court, determined, on the People’s appeal, the evidence presented to the grand jury was legally sufficient to support the charged crimes (aggravated unlicensed operation of a motor vehicle). One issue was whether the ID defendant showed to the officer at the traffic stop was sufficient to connect the defendant to the […]

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MOTHER PRESENTED SUFFICIENT EVIDENCE IN SUPPORT OF HER PRO SE PETITION FOR A MODIFICATION OF CUSTODY TO WARRANT A HEARING (THIRD DEPT).

The Third Department, reversing Family Court, determined that mother presented enough evidence in her pro se petition for a modification of custody to warrant a hearing: “A parent seeking to modify an existing custody order first must demonstrate that a change in circumstances has occurred since the entry thereof that is sufficient to warrant the court […]

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THE ADMINISTRATIVE LAW JUDGE AND THE HEARING COMMITTEE HAD THE DISCRETION TO ACCEPT A LATE ANSWER FROM PETITIONER-PHYSICIAN WHO WAS FACING REVOCATION OF HER MEDICAL LICENSE; THE REJECTION OF THE ANSWER ON THE GROUND THE ALJ AND HEARING COMMITTEE DID NOT HAVE THE DISCRETION TO ACCEPT IT AS A MATTER OF LAW WAS ARBITRARY AND CAPRICIOUS (THIRD DEPT).

The Third Department determined the Administrative Law Judge’s (ALJ’s) and the Bureau of Professional Medical Conduct (BPMC) Hearing Committee’s rejection of the petitioner-physician’s attempt to file a late answer to the charges was arbitrary and capricious. The ALJ and the Hearing Committee determined they did not have discretion, as a matter of law, under Public […]

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