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Entries by Bruce Freeman

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MOTION TO AMEND THE NOTICE OF CLAIM IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED, THE NOTICE ADDED A NEW THEORY OF CAUSATION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion to amend her notice of claim in this slip and fall case should not have been granted. The motion was made two years after the complaint was filed and included a new theory of causation: A timely served notice of claim dated June 1, 2015, alleged, […]

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VIRGINIA MURDER CONVICTION WHICH REQUIRED DEFENDANT TO REGISTER AS A SEX OFFENDER IN VIRGINIA DID NOT QUALIFY DEFENDANT AS A SEX OFFENDER IN NEW YORK (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant should not have been adjudicated a sex offender in New York based upon a murder conviction in Virginia, where he was required to register as a sex offender under Virginia law. The defendant was convicted of murdering a three year old child who had suffered trauma to […]

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RECORD WAS INSUFFICIENT TO DETERMINE THE LEVEL OF PREJUDICE CAUSED BY PLAINTIFF’S FAILURE TO PRESERVE THE PHONE WHICH ALLEGEDLY CAPTURED IMAGES OF THE INCIDENT AT THE HEART OF THE LAWSUIT, DISMISSAL OF THE COMPLAINT REVERSED AND MATTER REMITTED FOR FURTHER DISCOVERY (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Garry, determined that the record was not sufficient to conclude whether dismissal of the complaint was a proper sanction for spoliation of evidence. Plaintiff alleged defendant negligently or intentionally struck defendant with an all-terrain vehicle (ATV). Defendant asked plaintiff to preserve a phone which allegedly contained […]

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ARBITRATOR’S AWARD OF ATTORNEY’S FEES TO PLAINTIFF IN THIS BREACH OF CONTRACT DISPUTE REINSTATED; MONEY JUDGMENT SHOULD NOT HAVE BEEN GRANTED TO A PARTY WHICH HAD CONTRACTED WITH PLAINTIFF, BUT WITH WHICH DEFENDANT DID NOT HAVE AN AGREEMENT TO ARBITRATE; COURT-REVIEW OF ARBITRATION AWARDS DISCUSSED IN DETAIL (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Renwick, reversing Supreme Court, determined the arbitrator’s award of attorney’s fees to the plaintiff should not have been vacated, but the arbitrator’s award of a money judgment to OHM, which had contracted with plaintiff but was not a party to any agreement to arbitrate with the defendant, […]

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PLAINTIFF FELL IN A POTHOLE IN THE PATH FROM THE BUS TO THE CURB, TRANSIT AUTHORITY’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (FIRST DEPT).

The First Department determined the defendant  New York City Transit Authority’s (NYCTA’s) motion for summary judgment in this slip and fall case was properly denied. Plaintiff was let off at a bus stop about seven or eight feet from the curb and stepped into a pothole: NYCTA’s motion was properly denied since the record presents […]

THE EVIDENCE DEFENDANT USED A PEN TO PUNCTURE THE CHEEK OF THE VICTIM CONSTITUTED EVIDENCE THE DEFENDANT USED A DANGEROUS INSTRUMENT IN THIS ASSAULT SECOND CASE, THE DEFENDANT WAS NOT ENTITLED TO A JURY INSTRUCTION ON THE ORDINARY-NONDEADLY-FORCE JUSTIFICATION DEFENSE (FIRST DEPT).

The First Department determined defendant’s request for a jury instruction on the ordinary-nondeadly-force justification defense in this Assault Second prosecution was properly denied. The defendant did not request a jury instruction on the deadly-force-justification defense. Defendant’s use of a pen to puncture the victim’s cheek constituted use of a dangerous instrument: The video surveillance captures […]

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STATEMENTS MADE BY DEFENDANT DURING A CONTROLLED PHONE CONVERSATION WITH THE MOTHER OF THE ALLEGED CHILD VICTIM SHOULD NOT HAVE BEEN SUPPRESSED; STATEMENTS MADE BY DEFENDANT IN A CLOSED ROOM AT THE SHERIFF’S OFFICE, WHERE DEFENDANT WAS INTERROGATED AND CONFRONTED WITH HIS INCULPATORY STATEMENTS, SHOULD NOT HAVE BEEN SUPPRESSED; ALTHOUGH DEFENDANT WAS INTERROGATED, HE WAS NOT IN CUSTODY (FOURTH DEPT).

The Fourth Department, on an appeal by the People in this child sexual contact case, determined defendant’s statement, made during a controlled phone conversation with the mother of the child, should not have been suppressed. The Fourth Department further found that statements made by the defendant during interrogation at the sheriff’s office should not have […]

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RESTITUTION SHOULD NOT HAVE BEEN ORDERED BECAUSE IT WAS NOT PART OF THE PLEA AGREEMENT, THE ARGUMENT SURVIVES THE GUILTY PLEA AND THE WAIVER OF APPEAL; DEFENDANT’S CONTENTION HE WAS DEPRIVED OF HIS RIGHT TO COUNSEL DID NOT SURVIVE THE WAIVER OF APPEAL BECAUSE DEFENDANT DID NOT ASSERT THE DEPRIVATION INFECTED THE PLEA AGREEMENT OR THE VOLUNTARINESS OF THE PLEA (FOURTH DEPT).

The Fourth Department determined restitution should not have been ordered because it was not part of the plea agreement. The court noted that defendant’s argument he was deprived of his right to counsel with respect to his decision to testify before the grand jury was not forfeited by his guilty plea, but was encompassed by […]

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DEFENDANT WAS DENIED HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL, DEFENSE COUNSEL RELIED ON A CONSTITUTIONAL SPEEDY TRIAL ARGUMENT WHEN DEFENDANT WAS ENTITLED TO DISMISSAL OF THE INDICTMENT PURSUANT TO THE SPEEDY TRIAL STATUTE (FOURTH DEPT).

The Fourth Department, vacating defendant’s guilty plea, determined defense counsel was ineffective because defendant was entitled to dismissal of the indictment pursuant to the speedy trial statute. Defense counsel was aware of the correct dates, but only argued defendant was deprived of his constitutional right to a speedy trial and did not correct County Court’s […]

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