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Entries by Bruce Freeman

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CONTINUOUS REPRESENTATION DOCTRINE DID NOT APPLY TO TWO DISTINCT AND SEPARATE ACTIONS, LEGAL MALPRACTICE ACTION TIME-BARRED (FIRST DEPT).

The First Department determined the continuous representation doctrine did not apply and the legal malpractice action was time-barred. Plaintiff was represented by defendant law firm in a 2005 divorce. Plaintiff’s ex-wife then sued plaintiff alleging he fraudulently concealed an asset in the divorce proceedings. Defendant law firm successfully defended the fraud action. 12 years after […]

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STATEMENTS MADE IN CONNECTION WITH A HOSPITAL’S QUALITY ASSURANCE INVESTIGATION ARE PRIVILEGED PURSUANT TO THE EDUCATION LAW AND PUBLIC HEALTH LAW; THE STATEMENTS ARE NOT DISCOVERABLE IN THE MEDICAL MALPRACTICE ACTION (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, over a concurrence, and refusing to follow the 2nd Department, determined certain statements made in connection with a hospital’s (SUNY Upstate’s) quality assurance investigation were privileged pursuant to the Education Law and Public Health Law and therefore were not subject to discovery in this medical malpractice action: “The New […]

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RECORD IS NOT SUFFICIENT TO DETERMINE HOW THE TRIAL COURT HANDLED NOTES FROM THE JURY, NEW TRIAL ORDERED; CHALLENGE TO THE PROPRIETY OF HOLDING A RECONSTRUCTION HEARING IS MOOT AND WILL NOT BE CONSIDERED AS AN EXCEPTION TO THE MOOTNESS DOCTRINE (FOURTH DEPT).

The Fourth Department, reversing the conviction, determined the record was not sufficient to determine how the trial court handled notes from the jury and reversal was therefore required: … [R]eversal is required as a result of ” the absence of record proof that the trial court complied with its [meaningful notice obligation] under CPL 310.30′ […]

ALTHOUGH DEFENDANT MET THE CRITERIA FOR A PERSISTENT FELONY OFFENDER THE RESULTING SENTENCE WAS TOO HARSH; SENTENCE REDUCED BY THE APPELLATE DIVISION (FOURTH DEPT).

The Fourth Department determined that, although defendant met the criteria for a persistent felony offender, he should not have been sentenced as a persistent felony offense due to the nature of his prior offenses. His sentence was reduced from 15 to life to 9 to 18 years. Defendant had been offered 2 !/2 to 5 […]

SUPPORT MAGISTRATE SHOULD NOT HAVE AWARDED CHILD SUPPORT TO FATHER; MOTHER WAS ENTITLED TO ARREARS UNDER THE CIRCUMSTANCES OF THIS CASE (FOURTH DEPT).

The Fourth Department concluded the support magistrate should not have awarded father child support because mother and father shared custody equally and father had the greater income and assets. The Fourth Department determined, in this circumstance, mother should be awarded arrears based upon the child support she should not have been ordered to pay: … […]

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TRIAL COURT DID NOT, AS PROMISED, INSTRUCT THE JURY ON THE PURPOSES OF INTRODUCING HEARSAY EVIDENCE OF THE CHILD-VICTIM’S DISCLOSURES OF SEXUAL ASSAULT AND DEFENSE COUNSEL DID NOT OBJECT; THE MAJORITY CONCLUDED THE ISSUE WAS NOT PRESERVED FOR APPEAL; TWO DISSENTERS ARGUED THE ERROR WAS REVERSIBLE AND DEFENSE COUNSEL WAS INEFFECTIVE FOR NOT OBJECTING (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, determined that any error in the trial court’s failure to instruct the jury on the purposes for the introductions of evidence of the child-victim’s disclosure of sexual assault in 2009 and in 2014, evidence which would otherwise be inadmissible bolstering, was not preserved. The dissenters argued that the error […]

QUESTION OF FACT WHETHER OWNER/GENERAL CONTRACTOR FAILED IN THEIR NONDELEGABLE DUTY TO SHUT OFF THE ELECTRICITY IN A BUILDING UNDERGOING DEMOLITION; PLAINTIFF RECEIVED AN ELECTRIC SHOCK WHEN HE STRIPPED INSULATION FROM AN ELECTRIC CABLE; PLAINTIFF’S LABOR LAW 241(6) CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED (FOURTH DEPT).

The Fourth Department determined the property owner/general contractor’s motion for summary judgment on the Labor Law 241(6) cause of action should not have been granted. Plaintiff received an electric shock when cutting away the insulation of an electric cable as part of a demolition project. Plaintiff was to make the wiring in the office safe […]

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ALTHOUGH SUBSTANTIAL EVIDENCE SUPPORTED DISCIPLINARY FINDINGS AGAINST PETITIONER, A SCHOOL BUS DRIVER WHO SLAPPED AN UNRULY STUDENT, TERMINATION WAS TOO SEVERE A PENALTY, TWO-JUSTICE DISSENT (FOURTH DEPT).

The Fourth Department determined substantial evidence supported the guilty findings on three disciplinary charges against petitioner, a driver of a school bus for special needs children. Petitioner had slapped a nine-year-old student who had become unruly. However, the majority determined the termination of the petitioner, a long-time employee with an unblemished record, was too severe a penalty. […]

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ALTHOUGH THE TWO THYROID SURGERIES WERE PERFORMED BY THE SAME DOCTOR, THE 2005 SURGERY AND THE 2010 SURGERY WERE DISCRETE EVENTS; THE STATUTE OF LIMITATIONS WAS NOT TOLLED BY THE CONTINUOUS TREATMENT DOCTRINE (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined the medical malpractice action based upon a 2005 thyroid surgery by the same doctor who performed the 2010 thyroid surgery was time-barred. The two surgeries were discrete events and the statute of limitations was not tolled by the continuous treatment doctrine: Defendants established that [the 2005] claims […]

QUESTION OF FACT WHETHER THE EMERGENCY DOCTRINE APPLIED IN THIS TRAFFIC ACCIDENT CASE; DEFENDANT SAW THE VEHICLE WHICH SUBSEQUENTLY RAN THE STOP SIGN AND THOUGHT IT WAS GOING TOO FAST TO STOP; QUESTION OF FACT WHETHER DEFENDANT SHOULD HAVE TAKEN EVASIVE ACTION (FOURTH DEPT).

The Fourth Department determined defendant did not eliminate questions of fact in this traffic accident case about whether the emergency doctrine applied. Defendant was behind plaintiffs’ motorcycle when a vehicle (operated by Buck) ran a stop sign, broadsided a truck (operated by Matthew) which then collided with the motorcycle. There was evidence defendant’s vehicle then […]

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