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Entries by Bruce Freeman

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PLAINTIFF LANDLORD HAD AN ADEQUATE REMEDY AT LAW FOR AN ALLEGED BREACH OF THE LEASE BY THE TENANT; PLAINTIFF’S ALLEGED LOSS OF GOODWILL WAS NOT APPLICABLE; THE BALANCE OF EQUITIES FAVORED THE TENANT; THE PRELIMINARY INJUNCTION WAS NOT WARRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, over a two-justice dissent, determined a preliminary injunction was not warranted in this dispute over a lease. Defendant store leased space in plaintiff mall. The lease provided the store could terminate the lease before the end of the term if its gross sales were below a threshold. The store sought […]

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DEFENDANT WAS CONVICTED OF STABBING THE VICTIM AT A CROWDED PARTY BUT NO ONE SAW DEFENDANT WITH A KNIFE; DEFENSE REQUEST FOR THE CIRCUMSTANTIAL EVIDENCE JURY INSTRUCTION SHOULD HAVE BEEN GRANTED; CONVICTION REVERSED (FOURTH DEPT).

The Fourth Department, reversing defendant’s murder conviction, determined that the defense request fot eh circumstantial evidence jury instruction should have been granted. It was alleged defendant stabbed the victim but no one saw the defendant with a knife: The victim was stabbed five times at a crowded house party where there were multiple ongoing fights, […]

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HEARING REQUIRED TO DETERMINE THE AMOUNT OF RESTITUTION AND TO WHOM RESTITUTION SHOULD BE PAID; UNPRESERVED ERRORS CONSIDERED ON APPEAL IN THE INTEREST OF JUSTICE (FOURTH DEPT).

The Fourth Department determined the record did not include sufficient evidence to support the restitution order and remitted the matter for a hearing: Defendant’s contention in her main brief that the court erred in ordering her to pay restitution without a hearing is not preserved for our review inasmuch as defendant “did not request a […]

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THE CITY’S AND THE ABUTTING PROPERTY OWNER’S MOTIONS FOR SUMMARY JUDGMENT IN THIS SIDEWALK SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED; THE CITY DID NOT SHOW THAT IT DID NOT CREATE THE DEFECT; THE ABUTTING PROPERTY OWNER HAS A NONDELEGABLE DUTY TO KEEP THE SIDEWALK SAFE (FIRST DEPT).

The First Department, reversing Supreme Court, determined the city’s and the abutting property owner’s motions for summary judgment in this sidewalk slip and fall case should not have been granted. The defect was a mound of concrete with a piece of metal in the sidewalk. Although the city demonstrated it did not have written notice […]

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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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