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Entries by Bruce Freeman

CLAIMANT’S FAILURE TO COMPLY WITH THE FORMATTING REQUIREMENTS SUPPORTED THE DENIAL OF CLAIMANT’S APPLICATION FOR BOARD REVIEW (THIRD DEPT).

The Third Department determined claimant’s failure to comply with the formatting requirements supported the denial of claimant’s application for Board review: The Board’s instructions for the RB-89 form regarding question number 13 required that claimant specify the date and document ID numbers of “the transcripts, documents, reports, exhibits, and other evidence in the Board’s file […]

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JUDGE WHO WAS THE DISTRICT ATTORNEY WHEN DEFENDANT WAS INDICTED WAS DISQUALIFIED FROM HEARING DEFENDANT’S MOTION TO VACATE HIS CONVICTION (FOURTH DEPT).

The Fourth Department, reversing County Court’s summary denial of defendant’s motion to vacate his conviction, determined the judge, who was the District Attorney when defendant was indicted, was disqualified from handling the motion: The Judge who denied defendant’s motion had been the Niagara County District Attorney when defendant was indicted in 2007 on the charges […]

TRAFFIC STOP WAS NOT SUPPORTED BY PROBABLE CAUSE TO BELIEVE DEFENDANT HAD COMMITTED A TRAFFIC VIOLATION (FOURTH DEPT).

The Fourth Department, reversing the Administrative Law Judge, determined defendant’s driver’s license should not have been revoked. The record lacked substantial evidence that the police officer had probable cause to believe defendant had committed a traffic violation when he made the traffic stop which resulted in defendant’s refusing to submit to a chemical test: A […]

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TEACHER’S LAWSUIT AGAINST STUDENTS ALLEGED INTENTIONAL, NOT NEGLIGENT, CONDUCT AND WAS THEREFORE TIME-BARRED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined plaintiff-teacher’s suit against two students alleged intentional conduct (battery), not negligent conduct, and was therefore time-barred. Plaintiff was pushed into a locker by the students who were fighting each other. Although the students did not intend to touch the teacher, the doctrine of transferred intent applied: Defendant met […]

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CONTRARY TO SUPREME COURT’S RULING, THE PURCHASE CONTRACT DID NOT INCLUDE A CLAUSE LIMITING PLAINTIFF’S REMEDY FOR A BREACH TO RETAINING THE DEPOSIT (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the purchase contract did not have a limitation of remedies clause restricting plaintiff’s damages for a breach to retaining the deposit: A limitation of remedies “will not be implied and to be enforceable must be clearly, explicitly and unambiguously expressed in a contract”… . Indeed, “[s]uch clauses are […]

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DEFENDANT, WHO CO-OWNED THE PROPERTY FOR A TWO-YEAR PERIOD, DEMONSTRATED HE DID NOT HAVE ACTUAL OR CONSTRUCTIVE NOTICE OF THE HAZARDOUS LEAD PAINT CONDITION (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant’s motion for summary judgment in this lead-paint exposure case should have been granted. Defendant was a co-owner of the subject property but he was able to demonstrate his connection to the property was such that he did not have actual or constructive notice of the hazardous lead […]

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RECKLESS ENDANGERMENT CONVICTION NOT SUPPORTED BY THE WEIGHT OF THE EVIDENCE; BECAUSE THE LEGAL SUFFICIENCY OF THE CONVICTION WAS NOT CHALLENGED IT MUST BE REVERSED NOT REDUCED BY THE APPELLATE COURT; GRAND LARCENY AND POSSESSION OF STOLEN PROPERTY CONVICTIONS NOT SUPPORTED BY THE WEIGHT OF THE EVIDENCE; INADEQUATE PROOF OF VALUE (FOURTH DEPT).

The Fourth Department reversed the reckless endangerment, grand larceny, possession of stolen property, and arson third degree convictions, and affirmed the murder, assault and arson second degree convictions. With respect to reckless endangerment first degree, the conviction was against the weight of the evidence and the appellate court could not reduce the conviction to a lesser included […]

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ALTHOUGH THE ASSAULT JURY INSTRUCTION DID NOT TRACK THE INDICTMENT, THE PEOPLE DID NOT OBJECT TO IT AND THE APPELLATE COURT MUST ASSESS THE SUFFICIENCY OF THE EVIDENCE ACCORDING TO THE INSTRUCTION; ASSESSED IN THE LIGHT OF THE JURY INSTRUCTION, THE ASSAULT COUNTS WERE NOT SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE; THE CRIMINAL USE OF A FIREARM JURY INSTRUCTION DID NOT TRACK THE INDICTMENT, VIOLATING DEFENDANT’S RIGHT TO BE TRIED ONLY ON THE CRIMES CHARGED (FOURTH DEPT).

The Fourth Department, over a dissent, reversed the assault convictions, while affirming the murder conviction. The codefendant, intending to kill the decedent, also shot the two assault victims. Defendant was charged with murder and assault as an accomplice. Although the indictment charged assault under a transferred intent theory, the jury was instructed to find the defendant […]

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