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Entries by Bruce Freeman

WHETHER DEFENDANT WAS PROPERLY SENTENCED AS A SECOND FELONY OFFENDER DEPENDS ON THE UNDERLYING FACTS FOR THE PREDICATE FEDERAL OFFENSE WHICH ARE NOT ON THE RECORD; MATTER REMITTED FOR THAT DETERMINATION (THIRD DEPT).

The Third Department, reversing Supreme Court and remitting the matter, determined that whether the federal offense used as a predicate for defendant’s second felony offender designation is the equivalent of a New York felony depends on the underlying facts of the federal offense: … [T]he federal statute under which defendant was previously convicted provides, in […]

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DEFENDANTS IN THIS SLIP AND FALL CASE FAILED TO DEMONSTRATE THE DEFECT WHICH CAUSED PLAINTIFF’S FOOT TO SINK INTO SOFT ASPHALT WAS TRIVIAL OR OPEN AND OBVIOUS AS A MATTER OF LAW (THIRD DEPT).

The Third Department, reversing Supreme Court, determined defendants in this slip and fall case did not demonstrate the defect which allegedly caused plaintiff’s foot to sink down about an inch into soft temporary asphalt was trivial or open and obvious as a matter of law: Although defendants stress that the alleged defect was, at most […]

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THE ALLEGATION A PLASTIC SURGEON POSTED BEFORE AND AFTER PHOTOGRAPHS OF PLAINTIFF WITHOUT PERMISSION STATED A CAUSE OF ACTION FOR BREACH OF FIDUCIARY DUTY (THIRD DEPT).

The Third Department, reversing Supreme Court, in a full-fledged opinion by Justice Egan, determined plaintiff stated causes of action for both a violation of privacy pursuant to the Civil Rights Law, and breach of a fiduciary duty. Plaintiff alleged defendant plastic surgeon posted before and after photographs of the plaintiff without her consent. The breach […]

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DEFENDANT PROPERTY OWNER DID NOT DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF A PROTRUDING NAIL IN A BASEMENT STAIRWAY WHICH ALLEGEDLY CAUSED PLAINTIFF’S SLIP AND FALL; DEFENDANT DID NOT PRESENT EVIDENCE DEMONSTRATING WHEN THE STAIRWAY WAS LAST CLEANED OR INSPECTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant property owner did not demonstrate a lack of constructive notice of a protruding nail in a basement stairway which allegedly caused plaintiff to slip and fall. The defendant did not present any evidence demonstrating when the stairway was last inspected or cleaned: … [T]he defendants failed to […]

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THE FAILURE TO INCLUDE THE PHONE NUMBER FOR THE NYS DEPARTMENT OF FINANCIAL SERVICES IN THE RPAPL 1304 NOTICE OF FORECLOSURE RENDERED THE NOTICE FACIALLY DEFECTIVE; DEFENDANT ENTITLED TO SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s cross-motion for summary judgment in this foreclosure action should have been granted. The bank did not demonstrate strict compliance with the notice-of-foreclosure requirements of RPAPL 1304. The notice did not include the phone number for the NYS Department of Financial Services’ toll-free helpline: “Where an RPAPL 1304 […]

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HERE THE MOTION TO RENEW, BASED UPON A CHANGE IN OR CLARIFICATION OF THE LAW, SHOULD HAVE BEEN GRANTED DESPITE THE APPELLATE RULING ON THE PRIOR ORDER (FIRST DEPT).

he First Department, reversing Supreme Court, determined defendant landlord’s motion to renew based upon a change in the law should have been granted} On appeal, this Court agreed with defendant that the law as it existed prior to enactment of the Housing Stability and Tenant Protection Act of 2019 (HSTPA) applies in this case. However, […]

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THE USE OF ICE PACKS WAS NOT PART OF THE DEFENDANT MANUFACTURER’S BURN-TREATMENT SYSTEM; THEREFORE THE DEFENDANT COULD NOT BE HELD LIABLE BY THE INJURED PLAINTIFF FOR THE FAILURE TO WARN AGAINST APPLYING ICE PACKS TO BARE SKIN (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant Zeltiq, the manufacturer of a system for treating burns (CoolSculpting Systems), could not be held liable for injury allegedly caused by the application of ice packs after the CoolSculpting treatment. The complaint alleged a failure to warn of the the danger of using ice packs. The use […]

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THE APPEAL WAIVER WAS INVALID, CRITERIA EXPLAINED; THERE ARE UNRESOLVED QUESTIONS (RAISED BY A DEFENSE INVESTIGATION SUBMITTED WITH THE MOTION TO SUPPRESS) ABOUT WHETHER THE DESCRIPTON OF THE SEARCHED PREMISES IN THE WARRANT WAS ACCURATE, REQUIRING A HEARING; MATTER REMANDED (FIRST DEPT

The First Department, in a full-fledged opinion by Justice Higgitt, remanding the matter for a suppression hearing, and finding the appeal waiver invalid, determined there were questions about whether the search warrant described the premises to be searched with sufficient particularity. The warrant indicated there was only one apartment, with an unmarked tan door. The […]

THE PROCESS SERVER DID NOT MAKE SUFFICIENT EFFORTS TO PERSONALLY DELIVER THE SUMMONS AND COMPLAINT BEFORE RESORTING TO NAIL AND MAIL SERVICE; COMPLAINT DISMISSED FOR LACK OF PERSONAL JURISDICTION OVER DEFENDANT (SECOND DEPT).

The Second Department determined the complaint should have been dismissed for lack of personal jurisdiction. The process server did not make sufficient efforts to personally deliver the summons and complaint before resorting to nail and mail service: … [T]he plaintiff failed to demonstrate that the process server acted with due diligence before relying on affix […]

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IN AN EFFORT TO CONVINCE THE COURT TO GRANT THEIR REQUEST FOR A COMPETENCY HEARING BASED UPON DEFENDANT’S REJECTION OF A FAVORABLE PLEA OFFER, THE DEFENSE ATTORNEYS REVEALED CONFIDENTIAL COMMUNICATIONS WITH DEFENDANT ABOUT THE STRENGTH OF THE EVIDENCE; ALTHOUGH THE DEFENSE ATTORNEYS WERE ATTEMPTING TO HELP THE DEFENDANT, THE DEFENSE ATTORNEYS BECAME WITNESSES AGAINST THE DEFENDANT, DEPRIVING HIM OF HIS RIGHT TO COUNSEL (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined defendant received ineffective assistance of counsel. Defendant was offered a plea deal which avoided incarceration for robbery and assault. When defendant rejected the offer, the defense attorneys requested a competency examination. In arguing for the competency examination, the defense attorneys described their efforts to convince defendant to accept […]

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