You are here: / Bruce Freeman

Entries by Bruce Freeman

,

THE ONE-HALF INCH DEFECT IN A STEP WAS NOT TRIVIAL AS A MATTER OF LAW AND DEFENDANT DID NOT DEMONSTRATE A LACK OF NOTICE OF THE DEFECT; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court in this slip and fall case, determined that the 1/2 inch defect in a step was not trivial as a matter of law and the defendant did not demonstrate a lack of notice: “A defendant seeking dismissal of a complaint on the basis that the alleged defect is trivial […]

,

THE CITY HAD CLEARED A PATH FREE OF ICE AND SNOW ON THE SIDEWALK; PLAINTIFF SLIPPED AND FELL WHEN SHE STEPPED BACKWARDS INTO AN AREA OF THE SIDEWALK WHICH HAD NOT BEEN CLEARED TO AVOID AN UNLEASHED DOG; THE CITY’S MOTION FOR SUMMARY JUDGMENT WAS PROPERLY GRANTED (SECOND DEPT).

The Second Department determined the city’s motion for summary judgment in this sidewalk slip and fall case was properly granted. There was a clear path on the sidewalk. Plaintiff slipped and fell when she stepped backward into an area of the sidewalk which had not been cleared to avoid an unleashed dog: ” To render […]

THE BUILDER OF THE HOUSE WAS NOT A NECESSARY PARTY IN THIS ACTION AGAINST THE SELLER BY THE PURCHASER; EVEN IF THE BUILDER WERE A NECESSARY PARTY, THE COURT SHOULD HAVE SUMMONED THE BUILDER ITSELF PURSUANT TO CPLR 1001 (b) RATHER THAN DISMISSING THE COMPLAINT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the complaint should not have been dismissed for failure to join a necessary party because (1) defendant (Accent) was not a necessary party and (2) even if Accent were a necessary party, the court should have summoned Accent itself pursuant to CPLR 1001 (b). The action concerned alleged […]

, , ,

TRIAL JUDGE SHOULD NOT HAVE LIMITED DEFENSE CROSS-EXAMINATION OF A WITNESS TESTIFYING ABOUT DNA TRANSFER, AND SHOULD NOT HAVE INSTRUCTED THE JURY TO ACCEPT A POLICE OFFICER’S EXPLANATION, NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined the trial judge should not have limited cross-examination of the prosecution’s witness about DNA transfer, and should not have instructed the jury, during defense counsel’s summation, to accept the testimony of a prosecution witness: … [T]he defendant’s contention that his right to confrontation was violated when the Supreme Court […]

,

DEFENDANT WAS ENTITLED TO A DOWNWARD DEPARTURE IN THIS STATUTORY RAPE CASE (SECOND DEPT).

The Second Department, reducing defendant’s risk assessment from level 2 to level 1, determined a downward department was appropriate because the statutory rape conviction involved consensual sex and defendant had no other sexual offenses in his history: In cases of statutory rape, the Board has long recognized that strict application of the Guidelines may in […]

,

PASSENGER’S MOTION FOR SUMMARY JUDGMENT IN THIS TRAFFIC-ACCIDENT, REAR-END COLLISION CASE SHOULD HAVE BEEN GRANTED DESPITE QUESTIONS OF FACT ABOUT THE TWO DRIVERS’ NEGLIGENCE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff-passenger’s motion for summary judgment in this rear-end collision case should have been granted, despite questions of fact about whether either driver was negligent: The right of an innocent passenger to summary judgment on the issue of whether he or she was at fault in the happening of an […]

CLAIMANT WAS AN EMPLOYEE OF A RESIDENTIAL NEWSPAPER DELIVERY SERVICE AND WAS ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT).

The Third Department determined claimant was an employee of a residential newspaper delivery service (Gannett) and was therefore entitled to unemployment insurance benefits: … [W]e find that the indicators of control retained and exercised by Gannett in its contract and dealings with claimant are not materially distinguishable from those previously found to have established an […]

,

A FORECLOSURE ACTION DISMISSED FOR LACK OF STANDING DOES NOT ACCELERATE THE MORTGAGE DEBT AND DOES NOT TRIGGER THE SIX-YEAR STATUTE OF LIMITATIONS (SECOND DEPT).

The Second Department determined the prior foreclosure action which was dismissed on the ground the bank did not demonstrate standing did not serve to accelerate the mortgage debt. Therefore the statute of limitations did not start running and the current foreclosure action is timely: … [T]he Supreme Court in the 2009 action determined that the […]

, , , ,

A PARTY NEED NOT MAKE A MOTION TO SET ASIDE THE VERDICT TO BE ENTITLED TO A WEIGHT OF THE EVIDENCE REVIEW BY AN APPELLATE COURT; THE VERDICT FINDING DEFENDANT BUS DRIVER NEGLIGENT, BUT FINDING THE NEGLIGENCE WAS NOT THE PROXIMATE CAUSE OF PLAINTIFF’S SLIP AND FALL, WAS AGAINST THE WEIGHT OF THE EVIDENCE (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Connolly, overruling precedent and disagreeing with the 3rd and 4th Departments, determined (1) a party need not make a motion to set aside the verdict to be entitled to an “against the weight of the evidence” review by the appellate court, and (2) the verdict finding […]

,

POLICE OFFICER’S WARRANTLESS ENTRY INTO A METH LAB WAS JUSTIFIED BY WHAT WAS IN PLAIN VIEW THROUGH A PARTIALLY OPEN DOOR AND THE OFFICER’S CONCERN FOR THE SAFETY OF PEOPLE INSIDE A NEARBY TRAILER (THIRD DEPT).

The Third Department determined a warrantless search and seizure of a meth lab was valid and defendant’s motion to suppress was properly denied. Four police officers went to defendant’s property based upon a tip defendant was operating a meth lab there. Before going to the property, the police learned defendant and his girlfriend had purchased […]

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy