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Entries by Bruce Freeman

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BRADY MATERIAL WHICH CONTRADICTED THE PEOPLE’S THEORY OF THE CASE SHOULD HAVE BEEN PROVIDED TO THE DEFENSE, CONVICTION REVERSED (CT APP).

The Court of Appeals, reversing defendant’s conviction, determined that defendant should have been provided with exculpatory (Brady) evidence. Eyewitnesses to the assault made statements that there were two perpetrators, which directly contradicted the People’s theory that defendant was the sole perpetrator: The first two prongs of Brady being satisfied, our inquiry thus turns to whether the suppressed […]

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THE DEATH OF A PARTY TO THIS FORECLOSURE ACTION AFFECTED THE MERITS OF THE CASE; SUPREME COURT DID NOT HAVE JURISDICTION TO DETERMINE DEFENDANT’S MOTION AND THE RELATED ORDER IS A NULLITY; THE APPEAL THEREFORE MUST BE DISMISSED (THIRD DEPT).

The Third Department determined the death of a party to this foreclosure proceeding deprived the court of jurisdiction. Therefore the court should not have considered defendant’s motion and the related order was a nullity: In 2003, defendant Sharon A. Harris (hereinafter defendant) and defendant Marion D. Schubnel executed a note in favor of plaintiff that […]

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RESPONDENT, WHO HAD BEEN ADJUDICATED A JUVENILE DELINQUENT, WAS NOT GIVEN SUFFICIENT INFORMATION BEFORE ADMITTING TO A PROBATION VIOLATION, THE PETITION WAS DISMISSED; THE ERROR DID NOT REQUIRE PRESERVATION AND THE APPEAL WAS NOT MOOT BECAUSE OF THE COLLATERAL CONSEQUENCES OF A JUVENILE DELINQUENCY ADJUDICATION (THIRD DEPT).

The Third Department, dismissing the petition, determined that respondent, who had been adjudicated a juvenile delinquent, was not provided sufficient information before admitting to a probation violation. Because of the collateral consequences of a “juvenile delinquent” adjudication, the appeal is not moot, even though the period of respondent’s custody and care under the Office of […]

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PLAINTIFF’S EXPERT’S AFFIDAVIT, ALTHOUGH POORLY DRAFTED, RAISED A QUESTION OF FACT WHETHER DEFENDANTS DEPARTED FROM THE STANDARD OF CARE FOR A SPINAL FUSION PROCEDURE, SUPREME COURT REVERSED (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the expert affidavit submitted in opposition to defendants’ motion for summary judgment, although not well-drafted, raised a question of fact whether defendants’ departed from the standard of care for the placement of hardware in a spinal fusion procedure: … [P]laintiff submitted the expert affidavit of a board-certified orthopedic […]

METHODS FOR DETERMINING WEEKLY WORKERS’ COMPENSATION BENEFITS FOR SHORT-TERM EMPLOYMENT EXPLAINED, MATTER REMITTED FOR THE GATHERING OF EVIDENCE AND RE-CALCULATION (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined the benefits to be provided to the injured worker, based upon only 78 days of employment may have been wrongly calculated and remitted the matter: Following a hearing, a Workers’ Compensation Law Judge (hereinafter WCLJ) established claimant’s average weekly wage as $933.14, which was arrived at […]

THE VALIDITY OF THE WILL SHOULD NOT HAVE BEEN DETERMINED AT THE STAGE WHEN THE PETITION FOR PROBATE WAS PRESENTED FOR FILING (THIRD DEPT).

The Third Department, reversing Surrogate’s Court, determined that the validity of the will should not have been determined at the stage when the petition to probate the will was presented for filing: The question presented to Surrogate’s Court was not whether the purported will should be admitted to probate, but only whether the petition seeking probate of […]

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DNA EVIDENCE TO DEMONSTRATE THE COMPLAINANT’S SEXUAL HISTORY PROPERLY EXCLUDED AS A VIOLATION OF THE RAPE SHIELD LAW (SECOND DEPT).

The Second Department determined Supreme Court correctly refused to allow defendant to present DNA evidence to demonstrate the complainant’s sexual history in this sexual offense case: We agree with the Supreme Court’s determination to preclude the introduction of certain DNA evidence at trial. Introducing evidence of additional DNA donors not linked to the defendant for […]

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DEFENDANT’S WAIVER OF APPEAL DID NOT REMAIN VALID AFTER DEFENDANT PLED GUILTY TO A DIFFERENT CRIME WHEN THE INITIAL SENTENCE PROMISE COULD NOT BE FULFILLED (SECOND DEPT).

The Second Department determined defendant’s waiver of appeal was invalid because his consent to the waiver was not renewed after he pled to a different crime after the initial sentence promise could not met: … [T]he Supreme Court was unable to fulfill its sentencing commitment because the sentence it had promised was illegal … . […]

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ACTION AGAINST GAS COMPANY FOR CONTAMINATION OF REAL PROPERTY ACCRUED WHEN INJURY SHOULD HAVE BEEN DISCOVERED AND WAS TIME BARRED; ACTION FOR NUISANCE RELATING TO REMEDIATION EFFORTS, HOWEVER, IS SUBJECT TO A DIFFERENT STATUTE OF LIMITATIONS PROVISION AND WAS NOT TIME-BARRED (SECOND DEPT).

The Second Department determined the causes of action against a gas company to recover damages for contamination of real property were time-barred, but the nuisance actions stemming from remediation efforts were not time-barred: “Generally, an action to recover damages for personal injury or injury to property must be commenced within three years of the injury” […]

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CO-OP DISCRIMINATED AGAINST THE DISABLED COMPLAINANT BY REFUSING TO ALLOW HER TO KEEP A DOG IN HER APARTMENT (SECOND DEPT).

The Second Department determined the Commissioner of the NYS Division of Human Rights had properly found the co-op discriminated against complainant (Hough) by refusing to allow her to keep a dog in her apartment: To establish that a violation of the Human Rights Law occurred and that a reasonable accommodation should have been made, Hough […]

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