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Entries by Bruce Freeman

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DEFENDANT DID NOT DEMONSTRATE WHEN THE AREA WHERE PLAINTIFF ALLEGEDLY SLIPPED AND FELL WAS LAST INSPECTED OR CLEANED; SUPREME COURT SHOULD NOT HAVE, SUA SPONTE, GRANTED DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ON A GROUND NOT RAISED BY THE PARTIES, I.E., FINDING THE DEFECT TRIVIAL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion for summary judgment in this staircase slip and fall case should not have been granted. The defendant did not demonstrate it did not have constructive notice of salt (used to melt ice) on the steps. Supreme Court should not have, sua sponte, granted the motion on […]

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ALTHOUGH A FRYE HEARING WAS NOT NECESSARY BECAUSE BIOMECHANICAL ENGINEERING IS AN ACCEPTED SCIENTIFIC THEORY, THE BIOMECHANICAL ENGINEER’S TESTIMONY SHOULD NOT HAVE BEEN ADMITTED IN THIS REAR-END COLLISION CASE; NO FOUNDATION WAS LAID FOR THE ENGINEER’S TESTIMONY; PLAINTIFF’S MOTION TO SET ASIDE THE DEFENSE VERDICT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion to set aside the defense verdict in this rear-end collision traffic accident case should have been granted. Although Supreme Court was correct in finding that a Frye hearing was not necessary because biomechanical engineering is an accepted scientific theory, no proper foundation was laid for the defense expert’s […]

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DEFENDANT’S MOTION TO VACATE ITS DEFAULT BECAUSE IT WAS NEVER SERVED WITH THE SUMMONS AND COMPLAINT SHOULD HAVE BEEN GRANTED; THE ADDRESS ON FILE WITH THE SECRETARY OF STATE WAS INCORRECT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion to vacate its default because it was never served with the summons and complaint should have been granted. The defendant demonstrated the address on file with the Secretary of State was incorrect and the failure to update the address was not a deliberate attempt to avoid […]

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PLAINTIFF’S MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN THIS NEGLIGENT SUPERVISION AND NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS ACTION AGAINST THE DEPARTMENT OF EDUCATION STEMMING FROM THE ALLEGED RAPE OF PLAINTIFF ON SCHOOL GROUNDS SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined plaintiff’s motion for leave to file a late notice of claim should have been granted for the negligent supervision and negligent infliction of emotional distress causes of action against the Department of Education stemming from the the sexual assault of the plaintiff on school grounds: The DOE […]

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TENANT’S MOTION TO REMOVE AN EVICTION PROCEEDING FROM CIVIL COURT AND CONSOLIDATE IT WITH A BREACH-OF-LEASE ACTION IN SUPREME COURT SHOULD HAVE BEEN GRANTED; LEASE PROVISIONS PRECLUDED THE COUNTERCLAIMS AND EQUITABLE RELIEF IN THE EVICTION PROCEEDING, BUT THAT RELIEF IS AVAILABLE IN THE SUPREME COURT PROCEEDING (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the plaintiff’s (tenant’s) motion pursuant to CPLR 602(b) to remove a summary proceeding (eviction proceeding) from Civil Court and consolidate it with the breach-of-lease proceeding in Supreme Court should have been granted: On January 1, 2015, the plaintiff executed a five-year commercial lease with the defendant for a […]

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FAMILY COURT ABUSED ITS DISCRETION BY DENYING THE REQUEST FOR AN ADJOURNMENT IN CONTEMPLATION OF DISMISSAL IN THIS JUVENILE DELINQUENCY PROCEEDING (SECOND DEPT).

The Second Department, reversing Family Court, determined Family Court abused its discretion in denying appellant’s request for an adjournment in contemplation of dismissal in this juvenile delinquency proceeding: The Family Court has broad discretion in determining whether to adjourn a proceeding in contemplation of dismissal … . Although, as it is often stated, a respondent […]

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PLAINTIFF BANK DID NOT STRICTLY COMPLY WITH THE NOTICE PROVISIONS OF REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL) 1304 AND DID NOT DEMONSTRATE DEFENDANT HAD DEFAULTED IN THIS FORECLOSURE ACTION; THE DECISION ILLUSTRATES THE LEVEL OF STRICT COMPLIANCE WITH RPAPL 1304 WHICH IS REQUIRED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank was not entitled to summary judgment in this foreclosure action. Plaintiff did not demonstrate compliance with the notice provisions of Real Property Actions and Proceedings Law (RPAPL) 1304 and did not demonstrate defendant defaulted. The decision illustrates the level of strict compliance with RPAPL 1304 which […]

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QUESTION OF FACT WHETHER THE POLICE OFFICER, ANSWERING A CALL, ACTED RECKLESSLY IN THIS TRAFFIC ACCIDENT CASE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined there was a question of fact whether the defendant police officer (McMahon) acted recklessly in this traffic accident case. The officer, responding to a call, passed a line of cars by straddling the yellow line without siren or lights and struck plaintiff as plaintiff was attempting to make a […]

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IN THIS BATSON CHALLENGE CASE, THE MAJORITY HELD THE DEFENSE’S FAILURE TO ADDRESS THE PROSECUTOR’S STATED REASON FOR EXCLUDING A PROSPECTIVE JUROR, I.E. THAT THE PROSPECTIVE JUROR WAS NOT AFRICAN-AMERICAN, PRECLUDED APPEAL ON THAT ISSUE; THE DISSENT ARGUED THE THREE-STEP BATSON PROCEDURE WAS NOT FOLLOWED WITH RESPECT TO THAT JUROR, REQUIRING REVERSAL (SECOND DEPT).

The Second Department, over an extensive two-justice dissent, determined defendant’s Batson challenges were properly handled by the court and properly denied. The defense challenged the exclusion of several African-American potential jurors. With respect to one of the potential jurors, Putsam, the prosecutor answered the challenge by simply saying Putsam was not African-American. Although all three stages of a Batson challenge […]

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PROPER FOUNDATION FOR EXPERT OPINION EVIDENCE FINDING THAT THE TESTED SUBSTANCES CONTAINED COCAINE WAS NOT LAID AND THE TESTIMONY WAS THEREFORE INADMISSIBLE; CONVICTIONS ON TWO DRUG-POSSESSION COUNTS REVERSED, NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing defendant’s conviction on two drug possession counts, determined the People did not provide a proper foundation for the testimony of two experts who tested the substances alleged to contain cocaine: The opinion testimony by these experts was inadmissible, because the People failed to lay a foundation for the competence of the […]

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