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Entries by Bruce Freeman

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CIVIL COURT WHICH AWARDED RENT ARREARS IN THE EVICTION PROCEEDING DID NOT HAVE SUBJECT MATTER JURISDICTION OVER THE CLAIM FOR RENT DUE FOR THE REMAINDER OF THE LEASE (POST-EVICTION); THEREFORE THE ACTION IN SUPREME COURT FOR THE POST-EVICTION RENT AS LIQUIDATED DAMAGES WAS NOT BARRED BY THE DOCTRINE OF RES JUDICATA (FIRST DEPT).

The First Department, reversing Supreme Court, determined the doctrine of res judicata did not apply to this action for rent due as liquidated damages. Although the eviction proceeding in Civil Court awarded defendant the rent arrears, Civil Court did not have subject matter jurisdiction over the claim for the rent due for the remainder of […]

IN LAWSUITS AGAINST THE GOLF-COURSE OWNERS, A GOLFER COMPETING IN A TOURNAMENT ASSUMED THE RISK OF BEING STRUCK BY A GOLF BALL WHILE RIDIING IN A GOLF CART ON THE COURSE, BUT A GOLFER DRIVING A GOLF CART TO HER CAR IN THE COURSE PARKING LOT DID NOT ASSUME THE RISK OF A COLLISION WITH A CAR EXITING THE PARKING LOT (CT APP).

The Court of Appeals, affirming one assumption-of-the-risk case and reversing the other, in a full-fledged opinion by Judge Cannataro, determined, in lawsuits against the owners of the golf courses, a golfer assumes the risk of being struck with a golf ball, but does not assume the risk of injury in a collision while driving a […]

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UNLIKE A LEVEL-ONE OR LEVEL-TWO STREET STOP, A LEVEL-THREE STREET STOP JUSTIFIES POLICE PURSUIT, EVEN IF THE REASON FOR THE STOP, HERE AN APPARENT IMPENDING ASSAULT, WAS DISSIPATED BY THE SUSPECT’S FLIGHT (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Singas, affirming the appellate division, determined the police were justified in pursuing the defendant after a level three street stop, even though, at the time of the pursuit, the initial reason for the stop, an apparent impending attack on a pedestrian, had dissipated: We have […]

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PLAINTIFF, WHO TRIPPED AND FELL WHEN HE STEPPED INTO A LARGE CRACK, ASSUMED THE RISK OF PLAYING CRICKET ON A CITY-OWNED TENNIS COURT WITH AN IRREGULAR SURFACE; COMPLAINT PROPERLY DISMISSED; STRONG DISSENT (CT APP).

The Court of Appeals, affirming the dismissal of the complaint, determined plaintiff assumed the risk of playing cricket on a city tennis court with a cracked surface. Judge Rivera, in an extensive dissenting opinion, argued that there is a question of fact whether the city failed to maintain the tennis court in a reasonably safe […]

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CRIMINAL POSSESSION OF STOLEN PROPERTY FOURTH AND FIFTH DEGREE ARE LESSER INCLUDED OFFENSES OF CRIMINAL POSSESSION OF STOLEN PROPERTY THIRD DEGREE; UNAUTHORIZED USE OF A VEHICLE, HOWEVER, IS NOT BECAUSE THE CRIMINAL POSSESSION STATUTE DOES NOT REQUIRE POSSESSION OF A VEHICLE (FIRST DEPT).

The First Department, in this juvenile delinquency proceeding, determined the criminal possession of stolen property fourth and fifth degree convictions should have been vacated as lesser included offenses of criminal possession of stolen property third degree. The court noted that unauthorized use of a vehicle is not a lesser included offense of criminal possession of […]

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THE JUDGE PRONOUNCED A FELONY SENTENCE WITHOUT AN UPDATED AND COMPLETE PRESENTENCE REPORT; SENTENCE VACATED (FIRST DEPT).

The First Department, vacating defendant’s sentence after his period of incarceration was served but before his postrelease supervision was complete, determined the absence of a complete and updated presentence report invalidated the sentence: Where a person is convicted of a felony, the court must order a presentence investigation of the defendant and it may not […]

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THE CITY CANNOT SEEK REIMBURSEMENT FROM WORKERS’ COMPENSATION AWARDED TO A DISABLED FIREFIGHTER WHERE THE FIREFIGHTER RECEIVED BENEFITS FROM MORE THAN ONE SOURCE WHICH, IN TOTAL, EXCEEDED THE FIREFIGHTER’S FORMER SALARY (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Wilson, determined the city (Newburgh) could not recoup payments made to a disabled firefighter (Mr. Schulze) from workers’ compensation awards. The opinion is too complex to fairly summarize here: ​Pursuant to a complicated statutory scheme, paid firefighters outside New York City who become disabled at […]

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THE ACCUSATORY INSTRUMENT CHARGING DEFENDANT WITH “FAILURE TO PROVIDE NECESSARY SUSTENANCE” FOR A DOG, AN A MISDEMEANOR, WAS NOT SUPPORTED BY NONHEARSAY FACTUAL ALLEGATIONS; INSTRUMENT DISMISSED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Rivera, determined the accusatory instrument charging defendant with “failure to provide necessary sustenance” for a dog was facially insufficient because no nonhearsay factual allegations supporting the charge were provided: The statute at issue is Agriculture and Markets Laws (AML) section 353: “A valid and sufficient […]

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THE CHARGES STEMMED FROM A DEMONSTRATION SPARKED BY THE POLICE KILLING OF GEORGE FLOYD; DEFENDANT THREW TWO MOLOTOV COCKTAILS TOWARD POLICE OFFICERS; THE EVIDENCE DEFENDANT ENGAGED IN “TERRORISM” WAS LEGALLY INSUFFICIENT; SENTENCE REDUCED (THIRD DEPT).

The Third Department, vacating defendant’s “terrorism” conviction and significantly reducing his sentence, in a full-fledged opinion by Justice McShan, determined the “attempted aggravated assault upon a police officer as a crime of terrorism” conviction was not supported by legally sufficient evidence. The charges stemmed from a demonstration sparked by the police killing of George Floyd […]

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