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Entries by Bruce Freeman

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VENUE FOR THIS HYBRID ARTICLE 78/DECLARATORY JUDGMENT ACTION SEEKING TO ANNUL A TOWN LOCAL LAW WHICH CREATED A WILDLIFE OVERLAY DISTRICT IS THE COUNTY IN WHICH THE TOWN IS LOCATED PURSUANT TO TOWN LAW SECTION 66 (1) (FOURTH DEPT).

The Fourth Department, in a full-fledged opinion by Justice DeJoseph, determined Supreme Court properly found that Orleans County, not Niagara County, was the correct venue for this hybrid Article 78/declaratory judgment action seeking to invalidate a Town of Shelby Local Law creating a wildlife refuge overlay district, and further seeking to annul the Town Board’s negative […]

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AN ORDER ADDRESSING WHETHER DOCUMENTS SOUGHT IN DISCOVERY ARE PRIVILEGED IS APPEALABLE AS OF RIGHT (FOURTH DEPT).

The Fourth Department, reversing (modifying) an order concerning whether documents sought in discovery were privileged, noted that the order was appealable as of right: During discovery, a dispute arose over allegedly privileged documents that plaintiff withheld or redacted. In its privilege logs, plaintiff asserted that many of the documents were protected from disclosure on three […]

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SPANISH-LANGUAGE CONVICTION RECORDS FROM PUERTO RICO, WHICH WERE NOT TRANSLATED, WERE INSUFFICIENT TO PROVE DEFENDANT TO BE A SEX OFFENDER (FOURTH DEPT). ​

The Fourth Department, vacating the risk level determination, determined the proof defendant was a sex offender was insufficient. The documents relating to a conviction in Puerto Rico were in Spanish and were not translated: We agree with defendant that, in making its determination that defendant is a sex offender, the Board erred in relying on […]

MOTHER’S PETITION FOR PERMISSION TO RELOCATE WITH THE CHILD SHOULD NOT HAVE BEEN DISMISSED WITHOUT A HEARING (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined mother’s petition for permission to relocate with the child should not have been dismissed without a hearing: In this proceeding pursuant to Family Court Act article 6, we agree with petitioner mother that Family Court erred in summarily granting respondent father’s motion to dismiss her petition to relocate […]

DEFENDANTS’ DEPOSITION TESTIMONY IN THIS DOG-BITE CASE RAISED QUESTIONS OF FACT ABOUT DEFENDANTS’ PRIOR KNOWLEDGE OF THE DOG’S VICIOUS PROPENSITIES, SUPREME COURT REVERSED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this dog-bite case should not have been granted: We conclude that defendants failed to meet their initial burden of establishing that they neither knew nor should have known that the dog had any vicious propensities … . In support of their motion, […]

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IT IS REVERSIBLE ERROR FOR A JUDGE TO NEGOTIATE A PLEA DEAL WITH A CODEFENDANT IN EXCHANGE FOR TESTIMONY AGAINST THE DEFENDANT (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction, determined the trial judge should not have negotiated a plea deal with a codefendant in exchange for testimony against the defendant: … [T]he court committed reversible error when it “negotiated and entered into a [plea] agreement with a codefendant[,] requiring that individual to testify against defendant in exchange for […]

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FAILURE TO INFORM THE DEFENSE ABOUT A SECOND EYEWITNESS TO THE SHOOTING WAS A REVERSIBLE BRADY VIOLATION, THE MOTION TO VACATE SHOULD HAVE BEEN GRANTED; NEW TRIAL ORDERED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Mazzarelli, reversing Supreme Court, over a dissent, granted defendant’s motion to vacate his conviction and ordered a new trial, based upon the People’s failure to notify the defense of a second eyewitness to the shooting (a Brady violation). The opinion is too detailed factually and too comprehensive legally […]

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CONTINUOUS REPRESENTATION DOCTRINE APPLIED TO AN ENGINEERING FIRM HIRED TO OVERSEE AN HVAC INSTALLATION PROJECT; THE THREE-YEAR NEGLIGENCE STATUTE OF LIMITATIONS WAS TOLLED BY THE CONTINUOUS REPRESENTATION DOCTRINE AND THE ACTION WAS TIMELY (FIRST DEPT).

The First Department determined the negligence action against Skyline, an engineering firm hired to inspect an on-going HVAC (heating, ventilation, air conditioning) installation, was not time-barred because the continuous representation doctrine applied to toll the accrual of the limitations period: Plaintiff commenced this action in 2016 alleging that it retained Skyline, an engineering firm, to […]

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DEFENDANT DRIVER WAS ENTITLED TO SUMMARY JUDGMENT IN THIS BICYCLE-CAR TRAFFIC ACCIDENT CASE; PLAINTIFF BICYCLIST WAS TRAVELING THE WRONG WAY ON A ONE-WAY STREET AND DID NOT SLOW DOWN APPROACHING THE INTERSECTION WHERE HE COLLIDED WITH THE SIDE OF DEFENDANT’S CAR (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant driver was entitled to summary judgment in this bicycle-car collision case. Plaintiff was bicycling in the wrong direction on a one-way street. Defendant pulled out into the intersection after checking the traffic in the appropriate direction and plaintiff ran into the side of defendant’s car: Pursuant to […]

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DEFENDANT WAS PROPERLY PURSUED AND DETAINED BASED UPON HIS DRINKING FROM A CONTAINER IN A PAPER BAG AND RUNNING INSIDE A NEARBY BUILDING; THE INTENT TO DEFRAUD WAS PROPERLY INFERRED FROM DEFENDANT’S POSSESSION OF BOTH REAL AND COUNTERFEIT BILLS, KEPT SEPARATELY ON HIS PERSON (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Fahey, over an extensive two-judge dissent, determined defendant was properly pursued and detained after a police officer saw him on the street drinking from a container inside a paper bag and then saw him run inside a nearby building as the officer approached. The Court […]

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