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Entries by Bruce Freeman

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PLAINTIFF SOCIAL WORKER WAS MENACED BY A TENANT IN CITY HOUSING WIELDING A KNIFE AND SUED THE CITY; THE CITY WAS ACTING IN A GOVERNMENTAL CAPACITY; THERE WAS NO SPECIAL DUTY OWED TO PLAINTIFF BY THE CITY; THE ATTACK WAS NOT FORESEEABLE; SECURITY WAS ADEQUATE; THE COMPLAINT WAS PROPERLY DISMISSED (FIRST DEPT).

The First Department determined plaintiff social worker’s suit against the city based on a tenant’s menacing her with a knife  was properly dismissed. The incident happened at city housing for mentally ill and homeless persons: The court correctly concluded that the City defendants were acting in a governmental capacity when they provided funding for the […]

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DEFENDANTS-ATTORNEYS’ MOTION TO DISMISS THE LEGAL MALPRACTICE ACTION BASED UPON UNDENIABLE DOCUMENTARY EVIDENCE, AS WELL AS OTHER GROUNDS, SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendants-attorneys’ motion to dismiss the legal malpractice complaint based upon documentary evidence should have been granted. The plaintiffs-insurers’ alleged the defendants negligently advised them to disclaim insurance coverage: … [P]laintiffs allege that they sustained damages when they relied on defendants’ negligent advice that they could disclaim coverage of […]

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ALTHOUGH PETITIONER WAS ADJUDICATED A LEVEL THREE SEX OFFENDER AFTER HIS RELEASE FROM PRISON ON A PRIOR RAPE CONVICTION, HE WAS NOT SUBJECT TO THE RESIDENCY REQUIREMENTS OF THE SEXUAL ASSAULT REFORM ACT AFTER HIS RELEASE FROM PRISON ON A SUBSEQUENT ROBBERY/BURGLARY CONVICTION (THIRD DEPT).

The Third Department, reversing Supreme Court, determined petitioner, who was adjudicated a level three sex offender when released after a prior rape conviction, was not subject to the residential restrictions under the Sexual Assault Reform Act (Executive Law § 259-c (14)) upon release after his subsequent robbery/burglary convictions and incarceration: In 2007, petitioner was convicted of […]

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THE RECORD DID NOT INDICATE THE HEARING OFFICER ASSESSED THE RELIABILITY OF CONFIDENTIAL INFORMATION; MISBEHAVIOR DETERMINATION ANNULLED (THIRD DEPT).

The Third Department, annulling the misbehavior determination, found that record did not reflect that the hearing officer took the necessary steps to confirm the reliability of confidential information: Although the Hearing Officer indicates that he relied upon and independently assessed confidential testimony, neither the hearing transcript nor the witness interview notice form reflects that any […]

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FINDING THAT CLAIMANT MADE A WILLFUL FALSE STATEMENT TO OBTAIN UNEMPLOYMENT INSURANCE BENEFITS WAS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE; ALTHOUGH CLAIMANT DENIED SHE WAS GUILTY OF CRIMINAL CHARGES RELATED TO HER FIRING, SHE PROVIDED THE COURT DOCUMENTS WHICH INDICATED SHE HAD PLED GUILTY (THIRD DEPT).

The Third Department determined claimant should not have been found to have made a willful misrepresentation to obtain unemployment benefits. Claimant had been fired for allegedly hiding a coworker’s wallet that she found in lunchroom. Although she denied being guilty of the charges arising out of the incident, she provided the Department of Labor with […]

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REVERSIBLE ERROR TO ADMIT INTO EVIDENCE A VIDEO OF THE INTERROGATION OF DEFENDANT SHOWING HIM REMAINING SILENT WHILE THE POLICE RECOUNTED THE CASE AGAINST HIM (THIRD DEPT).

The Third Department reversed defendant’s conviction because a video of his interrogation, which showed him remaining silent while the police recounted the case against him, was admitted into evidence: “It is a well-established principle of state evidentiary law that evidence of a defendant’s pretrial silence is generally inadmissible” … . There are many reasons why […]

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FATHER WAS DENIED DUE PROCESS WHEN THE COURT TOOK SIX MONTHS TO HOLD A POST-DISPOSITIONAL HEARING AFTER A FAILED TRIAL DISCHARGE OF THE CHILDREN TO FATHER; THE CHILDREN WERE FINALLY RETURNED TO FATHER AND THE APPEAL WAS CONSIDERED AS AN EXCEPTION TO THE MOOTNESS DOCTRINE (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Singh, determined that father was entitled to an expedited post-dispositional hearing after the children were removed from the father’s custody based upon a failed trial discharge. The children were eventually returned to father, but the hearing took six months and the children were not returned to […]

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MISTRIAL BASED UPON DEFENSE COUNSEL’S CONFLICTS OF INTEREST WAS PROPERLY GRANTED WITH DEFENDANT’S CONSENT; DOUBLE JEOPARDY DID NOT ATTACH (THIRD DEPT).

The Third Department determined the mistrial, based upon defense counsel’s conflicts of interest (representation of prosecution witnesses) was properly granted with defendant’s consent. Therefore double jeopardy did not attach: Upon learning of defense counsel’s potential conflicts of interest, County Court engaged in a lengthy colloquy with the parties, during which they explored — to no […]

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ALLEGATION THAT PETITIONER FAILED TO REPORT AN INCIDENT OF SUSPECTED ABUSE BY ANOTHER EMPLOYEE OF THE NYS OFFICE FOR PEOPLE WITH DEVELOPMENTAL DISABILITIES WAS SUBSTANTIATED DESPITE THE FAILURE TO SUBSTANTIATE THE ALLEGATION OF ABUSE BY THE OTHER EMPLOYEE (THIRD DEPT).

The Third Department determined the NYS Office for People with Developmental Disabilities’s (OPWDD’s) finding that petitioner’s failure to report an incident of suspected abuse by another employee was substantiated was supported by the evidence, despite the fact that allegation of abuse by the other employee was not substantiated: The evidence at the hearing established that […]

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