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Entries by Bruce Freeman

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ALTHOUGH FATHER IS INCARCERATED FOR ASSAULTING MOTHER WHEN SHE WAS SEVEN MONTHS PREGNANT, FATHER IS ENTITLED TO A HEARING ON WHETHER VISITATION WITH THE CHILD, WHICH NEED NOT INCLUDE CONTACT VISITATION, IS IN THE BEST INTERESTS OF THE CHILD; IT IS THE MOTHER’S BURDEN TO DEMONSTRATE VISITATION WOULD BE HARMFUL (THIRD DEPT).

The Third Department, reversing (modifying) Family Court, determined the incarcerated father was entitled to a hearing on whether visitation would be in the best interests of the child. Father was convicted of assaulting mother when mother was seven months pregnant. Family Court had granted mother’s summary judgment motion precluding father’s contact until the child turns […]

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THE TRIAL PROOF COULD BE INTERPRETED TO SUPPORT AN INTENT TO CAUSE SERIOUS PHYSICAL INJURY (ASSAULT SECOND) OR AN INTENT TO CAUSE PHYSICAL INJURY (ASSAULT THIRD); DEFENDANT’S REQUEST THAT THE JURY BE INSTRUCTED ON ASSAULT THIRD AS A LESSER INCLUDED OFFENSE SHOULD HAVE BEEN GRANTED; NEW TRIAL ORDERED ON THAT COUNT (THIRD DEPT).

The Third Department, ordering an new trial on the assault second count, determined defendant’s request that the jury be instructed on assault third as a lesser included offense should have been granted: … County Court erred in refusing [defendant’s]  request to charge assault in the third degree as a lesser included offense of assault in […]

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DEFENDANT IN THIS SLIP AND FALL CASE OFFERED NO EVIDENCE THAT THE AREA OF THE FALL WAS CLEANED OR INSPECTED CLOSE IN TIME TO THE FALL; THEREFORE THE DEFENDANT DID NOT DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF THE SLIPPERY CONDITION; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court in this slip and fall case, determined defendant did not not demonstrate a lack of constructive notice of the slippery substance because no proof the area was inspected or cleaned close in time to the fall was presented: The defendant … failed to establish … that it lacked actual […]

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“LAW OFFICE FAILURE” WAS NOT A REASONABLE EXCUSE FOR FAILING TO ANSWER THE COMPLAINT; DEFENDANT’S MOTION TO COMPEL THE PLAINTIFF TO ACCEPT A LATE ANSWER SHOULD NOT HAVE BEEN GRANTED (SECOND D

The Second Department, reversing Supreme Court, determined plaintiff did not present a reasonable excuse for failing to timely answer the complaint. Therefore, plaintiff’s motion to compel defendant to accept the late answer should not have been granted: A defendant seeking to compel the plaintiff to accept a late answer “must show both a reasonable excuse […]

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DEFENDANT WAS NOT GIVEN A REASONABLE OPPORTUNITY TO EXPLAIN HIS REQUEST TO WITHDRAW HIS GUILTY PLEA; MATTER REMITTED FOR THAT PURPOSE AND A REPORT TO THE APPELLATE COURT (SECOND DEPT).

The Second Department, remitting the matter and holding the appeal, determined the judge should have conducted an inquiry when defendant stated he wished to withdraw his guilty plea. The defendant did not have a reasonable opportunity to present his reasons: “When a defendant moves to withdraw a guilty plea, the nature and extent of the […]

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WHETHER FAMILY COURT HAS SUBJECT MATTER JURISDICTION OVER THIS FAMILY OFFENSE PROCEEDING DEPENDS ON WHETHER THERE EXISTS AN “INTIMATE RELATIONSHIP” BETWEEN THE CHILD AND THE RESPONDENT, THE PARAMOUR OF PETITIONER’S FORMER HUSBAND; BEFORE THE COURT CAN RULE ON THE JURISDICTION ISSUE A HEARING TO DETERMINE WHETHER THERE IS AN “INTIMATE RELATIONSHIP” IS REQUIRED; MATTER REMITTED (SECOND DEPT).

The Second Department, reversing Family Court, determined Family Court should have held a hearing before ruling it did not have subject matter jurisdiction in this family offense proceeding. The proceeding was against respondent, the paramour of petitioner’s former husband. Whether Family Court has jurisdiction depends on whether the respondent is or has been in an […]

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GRANDFATHER DEMONSTRATED “EXTRAORDINARY CIRCUMSTANCES” AFFORDING HIM STANDING TO PETITION FOR CUSTODY OF THE CHILD (SECOND DEPT).

The Second Department, reversing Family Court, determined the maternal grandfather demonstrated extraordinary circumstances and therefore had standing to seek custody of the child. The matter was remitted for a custody award based on the best interests of the child: “Pursuant to Domestic Relations Law § 72(2)(a), a grandparent has standing to seek custody of a […]

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THE LAWSUIT AGAINST DEFENDANT RESIDENTIAL NURSING FACILITY STEMMING FROM PLAINTIFF’S DECEDENT’S COVID-19-RELATED DEATH IS PRECLUDED BY THE EMERGENCY OR DISASTER TREATMENT PROTECTION ACT (EDTPA); THE REPEAL OF THE ACT IS NOT RETROACTIVE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the negligence-based lawsuit against defendant residential nursing facility stemming from plaintiff’s decedent’s death from COVID-19 was precluded by the immunity conferred by the Emergency or Disaster Treatment Protection Act (Public Health Law former art 30-D, §§ 3080-3082, repealed by L 2021, ch 96, § 1) (EDTPA). The repeal […]

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PLAINTIFF FELL 15 TO 20 FEET SUFFERING A FRACTURED RIB AND A FRACTURED FEMUR WHICH REQUIRED AN OPEN REDUCTION AND INTERNAL FIXATION SURGERY; THE VERDICT AWARDING $1.5 MILLION FOR PAST PAIN AND SUFFERING, $2.5 MILLION FOR FUTURE PAIN AND SUFFERING, AND $800,000 FOR FUTURE MEDICAL EXPENSES SHOULD NOT HAVE BEEN SET ASIDE AS EXCESSIVE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the motion to set aside the jury verdict as excessive should not have been granted: The plaintiff was injured when, while standing on a beam performing demolition work, a heating, ventilation, and air conditioning duct fell and struck him, causing him to fall approximately 15 to 20 feet […]

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FAMILY COURT, AFTER A NONJURY TRIAL, AWARDED SOLE CUSTODY TO FATHER WHO RESIDES IN FLORIDA; THE CHILDREN APPEALED; THE SECOND DEPARTMENT REVERSED AND AWARDED SOLE CUSTODY TO MOTHER, IN PART BECAUSE FAMILY COURT DID NOT CONSIDER THE WISHES OF THE CHILDREN AGES 12 AND 15 (SECOND DEPT).

The Second Department, in an appeal by the children, reversing Family Court’s order issued after a nonjury trial, determined the record did not support the award of sole custody to plaintiff father who resides in Florida and who indicated during the proceedings he was not seeking residential custody of the children. The Second Department awarded […]

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