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Entries by Bruce Freeman

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ALTHOUGH SOME MONETARY RELIEF WAS SOUGHT, THE ESSENTIAL NATURE OF THE CLAIM WAS A DECLARATION VERIZON HAD WRONGFULLY DISCONTINUED CLAIMANT’S LIFELINE SERVICE; THEREFORE THE ACTION WAS PROPERLY DISMISSED AS OUTSIDE THE JURISDICTION OF THE COURT OF CLAIMS (SECOND DEPT).

The Second Department noted that the jurisdiction of the Court of Claims is generally limited to money damages. Therefore the action, which was seeking a ruling that claimant’s Verizon Lifeline Service was wrongfully discontinued, was properly dismissed: The Court of Claims is a court of limited jurisdiction determined by the Constitution and statute (see NY Const […]

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THE JURY SHOULD HAVE BEEN INSTRUCTED ON THE IMPLIED ASSUMPTION OF RISK DOCTRINE IN THIS SKIING ACCIDENT CASE, DEFENDANTS’ MOTION TO SET ASIDE THE $3,000,000/$15,000,000 VERDICT SHOULD HAVE BEEN GRANTED; THE DAMAGES AMOUNT IS NOT SUPPORTED BY THE RECORD (SECOND DEPT).

The Second Department, ordering a new trial, determined defendants’ motion to set aside the verdict should have been granted.  The jury should have been instructed on implied assumption of risk in this skiing accident case involving a nine-year-old novice skier. Plaintiff struck a pole and fractured her femur. The jury awarded $3,000,000 in past damages and […]

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NOTICE REQUIREMENTS OF RPAPL 1304 NOT PROVEN; PLAINTIFF BANK’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED IN THIS FORECLOSURE ACTION (SECOND DEPT)

The Second Department, reversing Supreme Court, determined the proof of compliance with the RPAPL 1304 notice requirements was deficient: … [T]he plaintiff failed to submit an affidavit of service or any evidence of mailing by the post office demonstrating that it properly served the defendant pursuant to the terms of RPAPL 1304 … . Contrary […]

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ALTHOUGH PLAINTIFF’S REPEATED FAILURE TO APPEAR FOR THE CONTINUATION OF HER DEPOSITION WAS WILLFUL, STRIKING THE COMPLAINT WAS TOO SEVERE A SANCTION (SECOND DEPT).

The Second Department, reversing (modifying Supreme Court) determined striking the complaint was too severe a sanction for plaintiff’s repeated failure to appear for the continuation of her deposition: … [T]he plaintiff’s repeated failure to appear for her continued deposition, coupled with her failure to demonstrate a reasonable excuse for that failure, supports an inference that […]

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PROOF OF THE VALUE OF THE STOLEN ITEMS WAS INSUFFICIENT; GRAND LARCENY 3RD DEGREE CONVICTION NOT SUPPORTED BY THE WEIGHT OF THE EVIDENCE (SECOND DEPT).

The Second Department determined the grand larceny third degree charged was against the weight of the evidence because the value of the stolen items was not proven: The People were required to establish that the market value of the stolen items at the time of the crime exceeded $3,000 (see Penal Law § 155.20[1]). Here, the stolen […]

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DEFENSE COUNSEL INEFFECTIVE FOR CONCEDING DEFENDANT SUFFERS FROM A DANGEROUS MENTAL DISORDER; COUNTY COURT SHOULD HAVE HELD THE MANDATORY STATUTORY HEARING; APPEAL IS NOT ACADEMIC BECAUSE OF LASTING CONSEQUENCES OF THE ‘DANGEROUS MENTAL DISORDER’ FINDING (SECOND DEPT).

The Second Department, reversing County Court, determined defendant did not receive effective assistance of counsel because the attorney conceded defendant suffered from a dangerous mental disorder. County Court should have held the mandatory statutory hearing. The appeal is not academic because of the lasting effect of the finding defendant suffers from a dangerous mental disorder: […]

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‘ANDERS’ BRIEF DEFICIENT; NEW COUNSEL ASSIGNED FOR THE APPEAL (SECOND DEPT).

The Second Department determined the “Anders” appellate brief submitted by counsel was deficient and assigned new counsel for the appeal: The brief submitted by the appellant’s counsel pursuant to Anders v California (386 US 738) is deficient because it fails to contain an adequate statement of facts and fails to analyze potential appellate issues or highlight facts in […]

COUNTY COURT SHOULD HAVE HELD A HEARING ON DEFENDANT’S MOTION TO DISMISS ON SPEEDY TRIAL GROUNDS; THE PROSECUTION WAS NOT STARTED UNTIL 22 MONTHS AFTER THE INCIDENT; MATTER REMITTED (SECOND DEPT).

The Second Department, remitting the matter for a hearing, determined defendant should have been afforded a hearing on his motion to dismiss for a speedy trial violation. Defendant was charged with damaging his wife’s computer in a domestic incident. The charge was not brought for 22 months: “[U]nder state due process principles, lengthy and unjustifiable […]

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JURY SHOULD NOT HAVE BEEN CHARGED ON THE ‘COMBAT BY AGREEMENT’ EXCEPTION TO THE JUSTIFICATION DEFENSE, CRITERIA EXPLAINED; ERROR DEEMED HARMLESS HOWEVER (SECOND DEPT).

Although the error was deemed harmless, the Second Department determined the jury should not have been instructed on the “combat by agreement” exception to the justification defense. Defendant was on a bus when rival gang members got on the bus. Defendant (14 years old) pulled out a gun and shot, killing an innocent passenger: Supreme […]

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SCHOOL-GROUNDS-PROXIMITY-RESIDENCE PROHIBITION APPLIED TO PETITIONER, A LEVEL THREE SEX OFFENDER, EVEN THOUGH THE OFFENSE FOR WHICH HE WAS BEING PAROLED WAS BURGLARY; SECOND DEPARTMENT DISAGREED WITH THE RESOLUTION OF THIS ISSUE BY THE THIRD AND FOURTH DEPARTMENTS; APPEAL WAS HEARD AS AN EXCEPTION TO THE MOOTNESS DOCTRINE (SECOND DEPT).

The Second Department, reversing Supreme Court and disagreeing with the Third and Fourth Departments, determined Executive Law 259-c (14), which prohibits sex offenders from entering school grounds, applied to petitioner in this habeas corpus proceeding. Petitioner had been designated a level three sex offender and was subsequently arrested and incarcerated for burglary. He was not […]

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