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Entries by Bruce Freeman

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AN INQUIRY INTO DEFENDANT’S MENTAL HEALTH WAS REQUIRED BEFORE ALLOWING DEFENDANT TO REPRESENT HIMSELF; THE RESULTS OF CPL ARTICLE 730 EXAMS, OF WHICH THE PRESIDING JUDGE WAS NOT MADE AWARE AT THE TIME OF THE REQUEST TO PROCEED PRO SE, INDICATING DEFENDANT MAY BE DELUSIONAL, CONSTITUTED ‘RED FLAGS’ WARRANTING THE INQUIRY (FIRST DEPT). ​

The First Department, reversing defendant’s conviction, over a dissent, determined defendant’s request to represent himself should not have been granted without further inquiry into defendant’s mental health. The First Department found that the results of defendant’s CPL Article 730 competency exams, finding that defendant may have been delusional, constituted “red flags” that warranted further inquiry […]

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ALTHOUGH THE ALLEGED RETALIATORY ACTIONS BY THE EMPLOYER TOOK PLACE YEARS AFTER PLAINTIFF STOPPED WORKING FOR THE EMPLOYER, THE COMPLAINT STATED VALID CAUSES OF ACTION FOR RETALIATORY EMPLOYMENT DISCRIMINATION AND PROMISSORY ESTOPPEL, SUPREME COURT REVERSED (FIRST DEPT). ​

The First Department, reversing Supreme Court, reinstated the retaliation (employment discrimination) and promissory estoppel causes of action against Artforum International Magazine. Plaintiff, an art curator, alleged sexual harassment by an Artforum publisher. After meeting with the two other publishers about the alleged harassment, the publishers allegedly promised to ensure the harassment would never happen again. […]

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FATHER’S VISITATION SHOULD NOT HAVE BEEN SUBJECT TO MOTHER’S CONSENT; ATTORNEY FOR THE CHILD SHOULD NOT HAVE REFERRED TO EVIDENCE TAKEN IN THE LINCOLN HEARING IN THE APPELLATE BRIEF; THE HEARING TRANSCRIPTS ARE SEALED AND CONFIDENTIAL (THIRD DEPT). ​

The Third Department, modifying Family Court, determined father’s visitation rights should not have been made subject to mother’s consent and the attorney for the child should not have referred to the Lincoln hearing in the appellate brief: Although the order provides the father with the opportunity for frequent and regular unsupervised access, the provision conditioning expansion of […]

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THE JURY WAS WRONGLY INSTRUCTED ON THE INFERENCE WHICH CAN BE DRAWN ABOUT THE LOCATION OF A BOUNDARY LINE FROM A SURVEY MAP FILED FOR MORE THAN 10 YEARS; VERDICT FINDING PLAINTIFF HAD WRONGLY SET THE PROPERTY BOUNDARY REVERSED (THIRD DEPT).

The Third Department, reversing the jury verdict finding that plaintiff had incorrectly set the western boundary of his property, held that the jury was wrongly instructed: The jury received defective instructions as to the application of CPLR 4522. In that regard, Supreme Court charged the jury that “[a] 2002 survey map prepared by Surveyor Dickinson […]

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CLAIMANT SHOULD NOT HAVE BEEN REQUIRED TO PROVIDE AN UNLIMITED MEDICAL RELEASE AS OPPOSED TO A LIMITED RELEASE CONCERNING ONLY THOSE AREAS OF HIS BODY AT ISSUE IN THE CLAIM FOR BENEFITS (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined claimant was not required to provide an unlimited medical release. Claimant should have been required to provide a release limited to those areas of his body which were at issue in the claim for benefits: The Board’s regulations provide that a limited release is a “limited […]

CHANGE IN TAX LAW RESULTING IN THE REMOVAL OF PETITIONER LAW FIRM’S CERTIFICATION AS A QUALIFIED EMPIRE ZONE ENTERPRISE ENTITLED TO TAX CREDITS SHOULD NOT HAVE BEEN APPLIED RETROACTIVELY (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the amendments to the Economic Development Zones Act of 2009 should not have been applied retroactively to petitioners, MSLMSH (a law firm and related parties), to remove petitioners’ certification as a qualified empire zone enterprise (QEZE) entitled to tax credits based upon the location of the business in Syracuse: […]

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UNION REPRESENTING CITY EMPLOYEES HAS STANDING TO CONTEST THE CREATION OF A NEW CITY DEPARTMENT AFFECTING THOSE EMPLOYEES (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the labor union representing employees of the city’s Office of the Building Inspector and Bureau of Code Enforcement had standing to contest an executive order issued by the mayor and related regulations which created a new Building Department: “[S]tanding is a threshold determination and a litigant must establish […]

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IT WAS AN ABUSE OF DISCRETION TO STRIKE PLAINTIFF’S COMPLAINT BASED UPON AN ALLEGED FAILURE TO COMPLY WITH COURT-ORDERED DISCOVERY (THIRD DEPT). ​

The Third Department, reversing Supreme Court, determined it was an abuse of discretion to grant defendants’ motion to strike the complaint for plaintiff’s alleged failure to comply with discovery orders. Discovery had been ongoing for years with several conferences with the judge and several orders to comply with new discovery demands: … [I]t is undisputed […]

BY STATUTE FAMILY COURT MAY NOT SET A GOAL OF ADOPTION BY SOCIAL SERVICES WITHOUT ORDERING THE FILING OF A PETITION TO TERMINATE PARENTAL RIGHTS; HERE FAMILY COURT ATTEMPTED TO SET THE INCOMPATIBLE GOALS OF ADOPTION AND REUNIFICATION WITH THE PARENT; THE INTENT OF FAMILY COURT IS CLEAR (HOPED-FOR REUNIFICATION) BUT THERE IS NO STATUTORY AUTHORITY FOR THE METHOD CHOSEN BY THE COURT (THIRD DEPT).

The Third Department, reversing Family Court, determined that the goals set by Family Court, moving toward adoption of the child while setting another hearing to see if reunification of the child with mother is possible, were incompatible under the statutes. The intent of Family Court was clear, but the method was not allowed by statute. […]

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THE SUBCONTRACTORS DID NOT SIGN THE PRIMARY CONTRACT WHICH INCLUDED AN ARBITRATION PROVISION; HOWEVER THE SUBCONTRACTORS EXPLOITED THE ARBITRATION PROVISION BY PARTICIPATING IN PRE-ARBITRATION MEDIATION; THEREFORE THE SUBCONTRACTORS WERE ESTOPPED FROM COMPELLING LITIGATION (THIRD DEPT).

The Third Department, reversing Supreme Court, determined that the subcontractors, who did not sign the primary contract which included an arbitration provision in the “General Conditions,” had exploited the benefits of the primary contract and therefore should be compelled to arbitrate. The primary contract was between Corning Hospital and Gilbane, the general contractor. One subcontractor […]

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