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Entries by Bruce Freeman

DESPITE THE HARDSHIP IMPOSED BY THE COVID-19 PANDEMIC, THE FAILURE TO TIMELY FILE A COVER SHEET ACCOMPANYING A DESIGNATING PETITION IS A FATAL DEFECT (CT APP).

The Court of Appeals, in an opinion per curiam, reversing the First Department and affirmed the Third Department, over two comprehensive dissenting opinions, determined that, despite the hardship imposed by Covid-19, the failure to timely file a cover sheet accompanying a designating petition is a fatal defect: In Matter of Seawright v Board of Elections in […]

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COUNTY COURT’S POST-JUDGMENT DENIAL OF DEFENDANT’S SUPPRESSION MOTION, AFTER A HEARING HELD PURSUANT TO THE SECOND CIRCUIT’S ORDER RE: DEFENDANT’S PETITION FOR A WRIT OF HABEAS CORPUS, WAS AN INTERMEDIATE ORDER WHICH IS NOT APPEALABLE; MATTER REMITTED TO ALLOW COUNTY COURT TO AMEND THE JUDGMENT OF CONVICTION TO REFLECT THE RECENT DENIAL OF THE SUPPRESSION MOTION; THE AMENDED JUDGMENT OF CONVICTION WOULD THEN BE APPEALABLE (THIRD DEPT).

The Third Department determined the post-judgment order denying defendant’s motion to suppress his statements was an intermediate order which was not appealable. The Second Circuit, pursuant to defendant’s petition for a writ of habeas corpus, ordered defendant’s release unless a state court adjudicated the voluntariness of his confession (made in 1986 when defendant was 16). […]

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DEFENSE COUNSEL’S REMARKS ABOUT DEFENDANT’S PRO SE MOTION TO WITHDRAW HER GUILTY PLEA CREATED A CONFLICT OF INTEREST REQUIRING THE ASSIGNMENT OF NEW COUNSEL; TWO-JUSTICE DISSENT (THIRD DEPT).

The Third Department, reversing Supreme Court, over a two-justice dissent, determined the sentencing court should have assigned new counsel to defendant based upon defense counsel’s remarks about defendant’s pro se motion to withdraw her guilty plea, which created a conflict of interest. The dissenters argued that, before defense made the remarks evincing a conflict of […]

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DEFENDANTS’ CLOSE RELATIONSHIP WITH SIGNATORIES TO CONTRACTS WITH FORUM SELECTION CLAUSES JUSTIFIED THE EXERCISE OF JURISDICTION OVER DEFENDANTS FOR PURPOSES OF JURISDICTIONAL DISCOVERY (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Manzanet-Daniels, determined that defendants’ close relationship with signatories to contracts with forum selection clauses justified the exercise of jurisdiction, for purposes of jurisdictional discovery: A non-signatory may … be bound by a forum selection clause where the non-signatory and a party to the agreement have such […]

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THE DOCTRINE OF ‘TAX ESTOPPEL’ PROHIBITED DEFENDANT FROM TAKING A POSITION ON OWNERSHIP OF A CORPORATION WHICH IS CONTRARY TO STATEMENTS MADE IN CORPORATE TAX RETURNS (FIRST DEPT).

The First Department, reversing Supreme Court and clarifying a prior ruling. determined the doctrine of “tax estoppel” applied to preclude defendant Elayan from taking a position contrary to the factual statements in corporate tax returns re: an ownership interest in the corporation, Edgewater: The court improvidently exercised its discretion in failing to apply the doctrine […]

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DEFENDANT FAILED TO DEMONSTRATE IT DID NOT HAVE CONSTRUCTIVE NOTICE OF THE BROKEN CURB WHICH ALLEGEDLY CAUSED PLAINTIFF’S SLIP AND FALL; DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant did not demonstrate it did not have constructive notice of the broken curb which allegedly caused plaintiff’s slip and fall: … [T]he defendants failed to meet this burden. In support of their motion, among other things, they proffered the affidavit of the director of engineering of Mount […]

UNDER CALIFORNIA LAW A CONTRACT WITH MUTUAL CANCELLATION CLAUSES IS VALID; THEREFORE THE CANCELLATION BY DEFENDANT WAS NOT A BREACH OF THE CONTRACT OR THE COVENANT OF GOOD FAITH (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the contract, which required the application of California law, and which included mutual cancellation clauses, was valid. Therefore cancellation by the defendant was not a breach of the contract or the covenant of good faith: Contrary to the plaintiff’s contention, the terms of the agreement in this case […]

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JUDGE SHOULD NOT HAVE SEARCHED THE RECORD AND, SUA SPONTE, GRANTED RELIEF NOT REQUESTED IN THE MOTION PAPERS, INCLUDING THE APPLICATION OF THE RES IPSA LOQUITUR DOCTRINE (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, determined the judge should not have, sua sponte, searched the record to grant relief that was not requested in this Labor Law 200, 240(1), 241(6), negligence action. Plaintiff was injured when a portion of a ceiling fell causing a scaffold to collapse on him. The judge should not […]

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ALTHOUGH THE SEARCH WARRANT WAS IMPROPERLY ADDRESSED TO THE SPECIAL OPERATIONS GROUP, WHICH INCLUDED PEACE OFFICERS AS OPPOSED TO POLICE OFFICERS, THE WARRANT WAS PROPERLY ADDRESSED TO POLICE OFFICERS AS WELL; THE PARTICIPATION OF PEACE OFFICERS IN THE SEARCH WAS LIMITED AND DID NOT INVALIDATE THE SEARCH (SECOND DEPT).

The Second Department determined the fact that corrections officers (i.e., peace officers) participated in a search, along with police officers, did not invalidate the search: There is no dispute that the search warrant was properly addressed to police officers of the City of Middletown Police Department and police officers of the New York State Police […]

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