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Entries by Bruce Freeman

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THE CRITERIA FOR PRE-ANSWER DISMISSAL OF THE COMPLAINT BASED UPON DOCUMENTARY EVIDENCE AND IN THE INTEREST OF JUDICIAL ECONOMY WERE NOT MET (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant’s pre-answer motion to dismiss the complaint alleging the breach of a letter of intent (LOI) should not have been granted. The evidence submitted by the defendant was not “documentary” evidence within the meaning of CPLR 3211 and the defendant did not demonstrate the complaint should be […]

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PLAINTIFF WAS ASSAULTED BY ANOTHER PATIENT IN DEFENDANT LONG-TERM CARE FACILITY; THE MEDICAL RECORDS OF THE ASSAILANT, WHO WAS NOT A PARTY, WERE PRIVILEGED AND NOT DISCOVERABLE; THE INCIDENT REPORTS PERTAINING TO THE ASSAULT WERE NOT SHOWN BY THE DEFENDANT TO BE PRIVILEGED PURSUANT TO THE PUBLIC HEALTH LAW AND WERE THEREFORE DISCOVERABLE (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined that the assailant’s medical records were privileged, but any incident reports pertaining to the assault were not. Plaintiff alleged she was attacked while a long-term resident of defendant long-term health care facility. The assailant in this third-party assault action was not made a party: We agree with […]

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DAMAGES IN THIS TRAFFIC ACCIDENT CASE FOR A TORN MENISCUS AND IRREPARABLE DAMAGE TO PLAINTIFF’S DOMINANT HAND ($25,000 FOR PAST PAIN AND SUFFERING AND $0 FOR FUTURE PAIN AND SUFFERING) WERE INADEQUATE; PLAINTIFF’S MOTION TO SET ASIDE THE VERDICT PURSUANT TO CPLR 4404(a) SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion to set aside the verdict as inadequate in this traffic accident case should have been granted. Plaintiff sustained a torn meniscus in his right knee and irreparable damage to his thumb on his dominant hand. The jury awarded $25,000 for pat pain and suffering and $0 for […]

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THE INSURANCE LAW REQUIRED SUBMITTING THE DISPUTE BETWEEN TWO CARRIERS TO ARBITRATION; THEREFORE SUPREME COURT DID NOT HAVE SUBJECT MATTER JURISDICTION OVER THE MATTER; THE LACK OF SUBJECT MATTER JURISDICTION CAN BE RAISED AT ANYTIME (SECOND DEPT).

The Second Department, reversing Supreme Court in this traffic accident case, determined the Insurance Law required that the matter involving a coverage dispute between two insurance carriers (Repwest and Hereford) be submitted to arbitration. Therefore Supreme Court did not have subject matter jurisdiction: The defendants … were passengers in the livery vehicle and no-fault benefits […]

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DEFENDANT’S CONVICTION OF ATTEMPTED ENDANGERING THE WELFARE OF A CHILD DID NOT MEET THE CRITERIA FOR THE ASSESSMENT OF 30 POINTS UNDER RISK FACTOR 9; DEFENDANT WAS THEREFORE A PRESUMPTIVE LEVEL ONE; HAD THE PEOPLE KNOWN DEFENDANT WAS PRESUMPTIVE LEVEL ONE THEY WOULD HAVE SOUGHT AN UPWARD DEPARTURE; MATTER REMITTED FOR A NEW DETERMINATION (SECOND DEPT).

The Second Department determined defendant’s conviction of attempted endangering the welfare of a child did not meet the criteria for assessing 30 points under risk factor 9, and therefore defendant should have been assessed at a presumptive level one. The People argued that had the defendant been assessed at a presumptive level one they would […]

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PROOF OF MULTIPLE INSTANCES OF SEXUAL CONTACT INSUFFICIENT; RISK ASSESSMENT REDUCED TO LEVEL ONE (SECOND DEPT).

The Second Department, reducing defendant’s risk assessment to level one, determined the proof of multiple instances of sexual contact was insufficient: … [T]he People failed to meet their burden of proof with respect to risk factor 4. Although the People submitted evidence, in the form of the defendant’s statements, that he engaged in sexual contact […]

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PROOF OF GENERAL INSPECTION PRACTICES DOES NOT DEMONSTRATE THE ABSENCE OF CONSTRUCTIVE NOTICE; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS ICE-ON-SIDEWALK SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant property-owner’s (Colonial’s) motion for summary judgment should not have been granted in this ice-on-sidewalk slip and fall case: “To meet its initial burden on the issue of lack of constructive notice, [a] defendant must offer some evidence as to when the area in question was last cleaned or […]

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IRRELEVANT PHOTOGRAPHS WERE ADMITTED SOLELY TO AROUSE THE EMOTIONS OF THE JURY; THE PROSECUTOR’S REMARKS IN SUMMATION WERE SIMILARLY IMPROPER; NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing defendant’s conviction and ordering a new trial, determined the photographs of the complainant’s genitals and anus were irrelevant and should not have been admitted in this sex-offense case. In addition, the court criticized the prosecutor’s remarks in summation (unpreserved errors): “Photographic evidence should be excluded only if its sole purpose is […]

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MATTER REMITTED FOR A REOPENED SUPPRESSION HEARING BASED UPON NEW EVIDENCE THAT THE VEHICLE STOP MAY HAVE BEEN BASED UPON INFORMATION FROM AN ANONYMOUS BYSTANDER (SECOND DEPT).

The Second Department, remitting the matter for a reopened suppression hearing, determined the hearing was warranted by new information that the stop of defendant’s vehicle may have been based on information from an anonymous source. The defendant had already been convicted of attempted robbery twice after a reversal: We agree with the defendant that the […]

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