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Entries by Bruce Freeman

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PLAINTIFF’S EXPERT’S AFFIDAVIT DID NOT DEMONSTRATE A CAUSAL RELATIONSHIP BETWEEN THE ALLEGED DEVIATION FROM THE STANDARD OF CARE AND PLAINTIFF’S INJURY WITH RESPECT TO ONE OF THE DEFENDANT DOCTORS, THE DOCTOR’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, over a two-justice dissent, determined that the medical malpractice action against defendant Dr. Dietz and his employer should have been granted because plaintiff’s expert did not raise a question of fact about whether the alleged departure from the standard of care had a causal relationship with the plaintiff’s […]

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THE EVIDENCE DID NOT SUPPORT THE FINDING THAT FATHER ABANDONED THE CHILD, THE PERMANENT NEGLECT FINDING, HOWEVER, WAS SUPPORTED BY THE EVIDENCE (FOURTH DEPT).

The Fourth Department, reversing (modifying) Family Court determined the evidence did not support the finding that father abandoned the child, but the evidence did support a finding of permanent neglect. The criteria for permanent neglect, not summarized here, are described in some depth in the decision. The matter was sent back for a dispositional hearing […]

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A FOUNDED SUSPICION OF CRIMINALITY WAS NOT A SUFFICIENT GROUND FOR A PAT SEARCH; HOWEVER THE SMELL OF MARIJUANA, ABOUT WHICH THE OFFICER TESTIFIED, WOULD JUSTIFY A SEARCH; BECAUSE THE SUPPRESSION COURT DID NOT RULE ON THE MARIJUANA-SMELL ISSUE, THE MATTER WAS REMITTED FOR A RULING (FOURTH DEPT).

The Fourth Department determined that, although the suppression court determined the police officer had a founded suspicion of criminality when he ordered defendant out of the car, a founded suspicion of criminality did not justify ordering the defendant to place his hands on the patrol car in preparation for a pat search. However. the officer […]

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DEFENDANT COMPLAINED THAT HIS ATTORNEY HAD NOT FILED OMNIBUS MOTIONS BUT DEFENSE COUNSEL SAID HE HAD FILED THEM AND THE COURT SAID IT HAD RECEIVED THEM; IN FACT, HOWEVER NO MOTIONS HAD BEEN FILED; DEFENDANT’S COMPLAINTS ABOUT HIS ASSIGNED COUNSEL WARRANTED FURTHER INQUIRY BY THE COURT; DEFENDANT WAS DEPRIVED OF HIS RIGHT TO COUNSEL, NEW TRIAL ORDERED (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction and ordering a new trial, determined that defendant’s complaints about his assigned counsel were sufficient to warrant further inquiry by the court: … [D]efendant “articulated complaints about his assigned counsel that were sufficiently serious to trigger the court’s duty to engage in an inquiry regarding those complaints”…  At a pretrial […]

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PLAINTIFF-STUDENT WAS INJURED BY AN OUTWARD-SWINGING BATHROOM DOOR WHICH OPENED INTO THE HALLWAY, THE SCHOOL DISTRICT’S MOTION TO SET ASIDE THE PLAINTIFF’S NEGLIGENCE VERDICT PROPERLY DENIED (FOURTH DEPT).

The Fourth Department determined the motion to set aside the negligence verdict against the school district was properly denied. Plaintiff student was injured by a bathroom door which opened outward into the hallway on the side of the hallway the students were instructed to use: [The] evidence, which we have evaluated in light of the unchallenged […]

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THE COMPLAINT ALLEGING THE COUNTY WAS VICARIOUSLY LIABLE (RESPONDEAT SUPERIOR) FOR THE NEGLIGENT ACTIONS OF A CORONER SHOULD NOT HAVE BEEN DISMISSED, THE CORONER ALLEGEDLY TRANSFERRED A PORTION OF THE REMAINS OF PLAINTIFF’S SON TO A VOLUNTEER FIRE DEPARTMENT FOR THE TRAINING OF CADAVER DOGS (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court, determined the complaint against the county, based upon the alleged negligence of a county employee, should not have been dismissed. It was alleged that a coroner (Jackman) employed by the county transferred human remains (plaintiff’s son) to a volunteer fire company for the purpose of train cadaver dogs: Although […]

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THE JUDGE SHOULD HAVE ALLOWED DEFENDANT TO EXPLAIN HIS CLAIM THAT HE WAS RECEIVING INEFFECTIVE ASSISTANCE OF COUNSEL AND HIS REQUEST FOR NEW COUNSEL, PLEA VACATED (FOURTH DEPT).

The Fourth Department, vacating defendant’s guilty plea, determined defendant should have been given the opportunity to explain his reasons for requesting a new attorney: … [D]uring the plea colloquy, defendant attempted to inform the court that he was pleading guilty only because he was not receiving effective assistance of counsel. Although vague and conclusory complaints […]

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NOTE OF ISSUE AND CERTIFICATE OF READINESS CONTAINING INCORRECT INFORMATION (I.E., DISCOVERY WAS COMPLETE) SHOULD HAVE BEEN VACATED; STIPULATION OF CONFIDENTIALITY WAS SUFFICIENT TO PROTECT TRADE SECRETS (FOURTH DEPT).

The Fourth Department determined the motion to vacate the note of issue and a certificate of readiness because the information therein was not correct (discovery was not complete). The court further determined that the confidentiality stipulation was sufficient to protect trade secrets during discovery: … [C]ontrary to the statements on the certificate of readiness, discovery was […]

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IF A DEFENDANT IS NOT SENTENCED AS A PREDICATE FELON THE MINIMUM SENTENCE MUST BE ONE-THIRD OF THE MAXIMUM, NOT ONE-HALF AS IT WAS HERE, AN APPELLATE COURT CAN NOT LET AN ILLEGAL SENTENCE STAND (FOURTH DEPT).

The Fourth Department noted that, where a defendant is not sentenced as a predicate felon, the minimum sentence is one-third of the maximum, not one-half of the maximum: We note, however, that the court imposed an illegal sentence of 3½ to 7 years’ imprisonment on defendant’s conviction for CPW in the third degree. Because defendant […]

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WHEN A PARTY’S ATTORNEY APPEARS THE PARTY IS NOT IN DEFAULT AND MAY THEREFORE APPEAL, FAMILY COURT SHOULD NOT HAVE AWARDED CUSTODY TO NONPARENTS ABSENT A HEARING DEMONSTRATING EXTRAORDINARY CIRCUMSTANCES AND THE BEST INTERESTS OF THE CHILD (FOURTH DEPT).

The Fourth Department determined mother was not in default, because her attorney had appeared, and therefore mother can appeal the award of custody to the nonparent petitioners. The Fourth Department further determined Family Court should have held a hearing to determine whether extraordinary circumstances justified awarding custody to nonparents. The prior consent order of custody […]

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