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Entries by Bruce Freeman

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COURT HAD JURISDICTION TO ISSUE EAVESDROPPING WARRANTS TO INTERCEPT CELL PHONE CALLS AND TEXT MESSAGES SENT AND RECEIVED OUTSIDE NEW YORK STATE (SECOND DEPT).

The Second Department determined Supreme Court had jurisdiction to issue eavesdropping warrants to intercept cell phone calls and text messages made and received outside New York State: “[A]ny justice of the supreme court of the judicial district in which the eavesdropping warrant is to be executed” (CPL 700.05[4]) “may issue an eavesdropping warrant . . […]

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JUDGE HAD THE AUTHORITY TO SEVER TWO COUNTS IN AN INDICTMENT AND REMOVE THE MATTER, INVOLVING A JUVENILE, TO FAMILY COURT; THE PEOPLE’S ARTICLE 78 SEEKING PROHIBITION DENIED AND DISMISSED (FIRST DEPT).

The First Department denied the People’s Article 78 action seeking to vacate an order by the respondent judge severing two counts which had been combined in an indictment and removing the charges to Family Court. The People objected to removing the prosecution of a 16-year-old to Family Court. In order the facilitate the removal, respondent […]

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QUESTIONS OF FACT WHETHER THE ADVERSE INTEREST EXCEPTION TO THE IN PARI DELICTO DEFENSE APPLIES IN THIS ACCOUNTANT MALPRACTICE CASE (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined questions of fact were raised about whether the adverse interest exception bars the in pari delicto defense in this accountant malpractice case: In this accounting malpractice action, plaintiffs, the liquidators of several hedge funds, allege that defendants failed to uncover fraudulent activity by the funds’ investment managers. The […]

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MASTER ARBITRATOR’S AWARD SHOULD NOT HAVE BEEN VACATED, REVIEW POWERS OF MASTER ARBITRATOR AND COURT EXPLAINED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the master arbitrator’s award in this no-fault insurance, fraudulent incorporation case should not have been vacated: “[A]n arbitrator’s rulings, unlike a trial court’s, are largely unreviewable” … . A court reviewing the award of a master arbitrator is limited to the grounds set forth in CPLR article […]

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PEDESTRIAN PLAINTIFF WAS STRUCK BY DEFENDANT’S VEHICLE AS SHE WAS CROSSING THE ENTRANCE TO A PARKING LOT; DEFENDANT TESTIFIED HE NEVER SAW THE PLAINTIFF; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND HER MOTION TO DISMISS DEFENDANT’S AFFIRMATIVE DEFENSE ALLEGING PLAINTIFF WAS COMPARATIVELY NEGLIGENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff-pedestrian’s motion for summary judgment in this traffic accident case should have been granted, and defendant’s affirmative defense alleged plaintiff was comparatively negligent should have been dismissed. Plaintiff was halfway through the entrance to a parking lot when defendant turned to enter the parking lot: The injured plaintiff […]

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THE CITY DID NOT DEMONSTRATE THE SALARY PROMISED PLAINTIFF AT THE OUTSET WAS A MISTAKE WHICH HAD BEEN CORRECTED, THE CITY’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED; PLAINTIFF’S CROSS MOTION FOR SUMMARY JUDGMENT ON HER BREACH OF CONTRACT ACTION SHOULD HAVE BEEN GRANTED; SUPREME COURT’S ANALYSIS UNDER AN “AT-WILL EMPLOYEE” THEORY WAS NOT APPLICABLE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the city-employer’s motion for summary judgment in this salary dispute should have been denied, and plaintiff-employee’s cross motion for summary judgment should have been granted. When plaintiff applied for the job the Notice of Appointment provided by the city indicated her salary would be approximately $47,000. However plaintiff was […]

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BANK’S EVIDENCE OF STANDING DID NOT MEET THE CRITERIA OF THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE (SECOND DEPT).

The Second Department, reversing Supreme Court. determined that the bank’s motion for summary judgment should not have been granted because the evidence of standing submitted by the bank did not meet the requirements of the business records exception to the hearsay rule: … [T]he plaintiff failed to meet its prima facie burden of establishing that […]

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PROOF DID NOT DEMONSTRATE THAT THE VICTIM’S EYE INJURY ROSE TO THE LEVEL OF ‘SERIOUS PHYSICAL INJURY;’ BASED UPON A WEIGHT OF THE EVIDENCE ANALYSIS, ASSAULT FIRST REDUCED TO ASSAULT SECOND (SECOND DEPT).

The Second Department, applying a weight of the evidence analysis, determined the People did not present sufficient proof to demonstrate the victim’s eye injury rose to the level of “serious physical injury” and reduced the Assault First conviction to Assault Second. Defendant threw a brick from an overpass which struck the windshield of the victim’s […]

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ALTHOUGH THE COMPLAINANT IDENTIFIED THE DEFENDANT FROM A PHOTO ARRAY IN A PROCEDURE CONDUCTED BY A POLICE OFFICER, THERE WAS NO PROOF OF THE BASIS FOR DEFENDANT’S ARREST BY ANOTHER OFFICER, THEREFORE DEFENDANT’S SUPPRESSION MOTION SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the evidence did not demonstrate that the officer who arrested defendant had probable cause to do so. Therefore defendant’s motion to suppress should have been granted. The People presented evidence that Officer Gorman conducted a photo identification procedure and, after the robbery complainant identified the defendant, Officer Gorman […]

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PHYSICAL INJURY IS NOT AN ELEMENT OF ATTEMPTED MURDER; REQUEST FOR MISSING WITNESS JURY INSTRUCTION BASED UPON THE COMPLAINANT’S FAILURE TO TESTIFY PROPERLY DENIED; PERSISTENT FELONY SENTENCING PROCEDURE WAS NOT FOLLOWED (SECOND DEPT).

The Second Department affirmed defendant’s attempted murder conviction, noting that proof of attempted murder does not require proof of serious injury, or any injury at all. The court further noted that the complainant was not under the People’s control and therefore the request for the missing witness jury instruction was properly denied. Defendant, however, was […]

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