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Entries by Bruce Freeman

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PLAINTIFF’S TESTIMONY ABOUT HOW THE TRAFFIC ACCIDENT HAPPENED FOUND INCREDIBLE AS A MATTER OF LAW AT THE SUMMARY JUDGMENT STAGE, DISSENT ARGUED THE TESTIMONY RAISED CLASSIC QUESTIONS OF FACT FOR THE JURY TO DETERMINE (FIRST DEPT). ​

The First Department, over an extensive dissent, determined the defendants’ motion for summary judgment in this traffic accident case was properly granted. The majority argued plaintiff’s testimony was incredible and therefore was properly disregarded. The dissent argued plaintiff’s testimony raised classic questions of fact about how the accident happened. The collision occurred when plaintiff was […]

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GUILTY PLEA VACATED IN THE INTEREST OF JUSTICE, COLLOQUY DID NOT INFORM DEFENDANT OF ALL THE RIGHTS SHE WAS GIVING UP (THIRD DEPT).

The Third Department, reversing County Court and vacating defendant’s guilty plea, over a two-justice concurrence and a dissent, exercised its interest of justice appellate jurisdiction because defendant was not fully informed of the rights she was giving up by entering a guilty plea. The concurrence argued that the potential consequences of the relief granted by […]

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PURCHASER OF A MARINA DEMONSTRATED THE PRIOR OWNER OBTAINED TITLE TO THE DISPUTED LAKE BOTTOM RIGHTS BY ADVERSE POSSESSION (THIRD DEPT).

The Third Department, reversing Supreme Court, determined plaintiff, the purchaser of a marina, had demonstrated the prior owner of the marina had obtained ownership of the disputed lake bottom rights by adverse possession: … [P]laintiff submitted, among other things, the affidavit of Donald Duso Jr., the grandson of [the prior owner]  and a current mechanic for plaintiff, the […]

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THE DENIAL OF DEFENDANT’S MOTION TO LIMIT THE EXPERT TESTIMONY PLAINTIFF COULD OFFER AT TRIAL DID NOT LIMIT THE ISSUES TO BE TRIED; THEREFORE ANY APPEAL MUST AWAIT THE CONCLUSION OF THE TRIAL; APPEAL DISMISSED (THIRD DEPT).

The Third Department determined defendant doctor could not appeal the denial of defendant’s motion to limit the expert testimony which plaintiff could offer at trial in this medical malpractice action. The motion court’s ruling did not limit the issues to be tried. Therefore an appeal must be brought after trial: It is well settled that […]

PLAINTIFF’S ACTION AGAINST DEFENDANT FOR LETTING PLAINTIFF USE A SCISSORS LIFT SURVIVED SUMMARY JUDGMENT; PLAINTIFF ALLEGED DEFENDANT NEGLIGENTLY ENTRUSTED THE LIFT TO HIM, KNOWING HE DID NOT KNOW HOW TO OPERATE IT; PLAINTIFF WAS INJURED WHEN THE LIFT TIPPED OVER AND PLAINTIFF FELL 25 FEET (THIRD DEPT).

The Third Department determined there was a question of fact whether defendant building contractor negligently entrusted a scissors lift to plaintiff, who was injured when the lift tipped over: Given the testimony regarding plaintiff’s alleged lack of experience operating the subject scissor lift, the alleged observations by defendant’s employees of plaintiff’s operation thereof, Reagles’ [defendant’s project superintendent’s] […]

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SPECIAL PROSECUTOR DID NOT HAVE THE AUTHORITY TO PROSECUTE A CRIMINAL OFFENSE ON BEHALF OF THE JUSTICE CENTER FOR PROTECTION OF PEOPLE WITH SPECIAL NEEDS; THE DISTRICT ATTORNEY DID NOT KNOWINGLY CONSENT AND DID NOT MAINTAIN CONTROL OVER THE PROSECUTION; INDICTMENT DISMISSED (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Rumsey, determined that the special prosecutor did not have the authority to prosecute a substance abuse counselor who allegedly sexually abused a 16-year-old patient. The special prosecutor was from the Justice Center for Protection of People with Special Needs. Because the special prosecutor did not have […]

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EVIDENCE PROPERLY ADMITTED AT TRIAL PURSUANT TO THE CRIME-FRAUD EXCEPTION TO THE ATTORNEY-CLIENT PRIVILEGE, THE SEARCH WARRANT WAS EXECUTED AT AND THE EVIDENCE WAS SEIZED FROM THE SARATOGA COUNTY PUBLIC DEFENDER’S OFFICE (THIRD DEPT).

The Third Department, in affirming defendant’s predatory sexual assault against a child and child pornography convictions, noted that evidence was seized from the Saratoga County Public Defender’s Office and the evidence was admissible at trial pursuant to the crime-fraud exception to the attorney-client privilege. The facts are not described in any detail: Defendant … contends that […]

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THE PEOPLE DID NOT DEMONSTRATE THE SEARCH OF DEFENDANT’S VEHICLE WAS A VALID INVENTORY SEARCH; THE RECORD SUPPORTED COUNTY COURT’S CONCLUSION THE INVENTORY SEARCH WAS A ‘PRETEXT’ FOR A SEARCH FOR INCRIMINATING EVIDENCE (THIRD DEPT).

The Third Department, in this appeal by the People, determined that the search of defendant’s vehicle was not a valid inventory search and the related suppression motion was properly granted: Although not fatal to the establishment of a valid inventory search … , the People did not admit the relevant tow and impound policy into […]

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ARTICLE 78 ACTION SEEKING TO PROHIBIT THE TRIAL JUDGE IN A CRIMINAL CASE FROM EXCLUDING TESTIMONY AS PROTECTED BY THE ATTORNEY-CLIENT PRIVILEGE DISMISSED AS INAPPROPRIATE; MATTER CONSIDERED AS AN EXCEPTION TO THE MOOTNESS DOCTRINE (THIRD DEPT).

The Third Department determined the Article 78 proceeding brought by the district attorney against the trial judge in a criminal case seeking prohibition should have been dismissed. The trial judge had ruled that the conversations between an attorney and the defendant at the scene of the crime were protected by attorney-client privilege. The Article 78 action […]

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EXCESSIVE INTERFERENCE BY THE TRIAL JUDGE DEPRIVED DEFENDANT OF A FAIR TRIAL; ISSUE CONSIDERED ON APPEAL IN THE INTEREST OF JUSTICE (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined the judge’s intervention usurped the roles of the attorneys and deprived defendant of a fair trial. Defense counsel did not object but the issue was considered on appeal in the interest of justice: “[W]hile a trial judge may intervene in a trial to clarify confusing testimony and facilitate […]

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