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Entries by Bruce Freeman

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EXPERT EVIDENCE ON THE CROSS-RACE EFFECT ON THE ABILITY TO IDENTIFY THE PERPETRATOR SHOULD HAVE BEEN ALLOWED, THE REQUEST TO GIVE THE CROSS-RACIAL IDENTIFICATION JURY INSTRUCTION SHOULD HAVE BEEN GRANTED, THE NEW (2017) RULING ON CROSS-RACIAL IDENTIFICATION SHOULD BE RETROACTIVELY APPLIED TO CASES ON DIRECT APPEAL WHEN THE RULING WAS MADE (FIRST DEPT).

The First Department, reversing defendant’s conviction, determined (1) defendant should have been allowed to present expert evidence of the cross-race effect on the ability of a witness to identify a defendant, and (2) the request to instruct the jury on the cross-race effect should have been granted. The First Department further held that the new (2017) […]

FOR CAUSE CHALLENGE TO JUROR SHOULD HAVE BEEN GRANTED, CONVICTION REVERSED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the for cause challenge to a juror should have been granted: The court improvidently exercised its discretion in denying defendant’s challenge for cause to a prospective juror who repeatedly expressed a predisposition to credit police testimony, and a belief that innocent defendants would testify on their own behalf, […]

DRAM SHOP CAUSE OF ACTION AGAINST DEFENDANT RESTAURANT IN THIS THIRD-PARTY ASSAULT CASE PROPERLY DISMISSED, BUT NEGLIGENCE CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT).

The First Department determined defendant’s motion for summary judgment on the Dram Shop Act cause of action was properly granted, but the negligence cause of action in this third-party assault case should not have been granted. There was uncontested evidence the assailant did not appear to be drunk when served. But there was a question […]

UNSIGNED FORM INSUFFICIENT TO MAKE RESPONDENT THE BENEFICIARY OF DECEDENT’S IRA (FIRST DEPT).

The First Department determined an unsigned form purporting to make respondent (Cunney) the beneficiary of decedent’s IRA was insufficient and did not constitute substantial compliance: The Surrogate correctly determined that, despite the decedent’s clear intent to designate respondent Cunney as the beneficiary of her IRAs, Cunney is not entitled to the proceeds of the IRAs […]

QUESTION OF FACT WHETHER INSURERS FAILED TO SETTLE A MULTI-MILLION DOLLAR MEDICAL MALPRACTICE ACTION IN BAD FAITH, SUPREME COURT REVERSED (THIRD DEPT).

The Third Department, reversing Supreme Court, over a concurrence, determined there was a question of fact whether the insurers failed to settle a multi-million dollar medical malpractice claim in bad faith. The facts are interesting but too detailed to fairly summarize here: To establish bad faith in failing to settle a liability claim, the insured […]

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ALTHOUGH PLAINTIFF DEFAULTED ON A MATERIAL TERM OF AN INSTALLMENT LAND SALE CONTRACT, DEFENDANT WAS NOT ENTITLED TO SPECIFIC PERFORMANCE OR CANCELLATION AND RETENTION OF THE SUBSTANTIAL PAYMENTS WHICH PLAINTIFF HAD MADE, PLAINTIFF WAS ENTITLED TO CONTINUED POSSESSION (THIRD DEPT).

The Third Department, reversing Supreme Court, determined that, although plaintiff had defaulted on an installment land sale contract (re: the payment of school taxes), defendant was not entitled to specific performance and was not entitled to cancellation of the contract and retention of the installment payments: “[T]he execution of a[n installment] contract for the purchase […]

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PETITIONER ENTITLED TO A FRYE HEARING TO DETERMINE THE EFFICACY OF AN ‘OTHER SPECIFIED PARAPHILIC DISORDER’ (OSPD) DIAGNOSIS IN THIS DANGEROUS SEX OFFENDER CIVIL CONFINEMENT HEARING (THIRD DEPT).

The Third Department determined petitioner sex offender was entitled to a Frye hearing to determine the efficacy of an “other specified paraphilic disorder” (OSPD) diagnosis: … OSPD (nonconsent) is the primary diagnosis upon which respondent relied to demonstrate that petitioner suffered from a mental abnormality under Mental Hygiene Law article 10. Citing the lack of specific diagnostic […]

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WARRANTLESS ENTRY INTO DEFENDANT’S APARTMENT WAS NOT JUSTIFIED BY THE EMERGENCY EXCEPTION TO THE WARRANT REQUIREMENT, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED, CONVICTION REVERSED (THIRD DEPT).

The Third Department, reversing defendant’s conviction which stemmed from a violation of an order of protection, determined that the emergency exception to the warrant requirement did not apply and her motion to suppress should have been granted. The order of protection directed defendant to stay away from Thomas Collins. The police officer, Carmichael, after entering […]

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PEOPLE DID NOT DISPROVE THE JUSTIFICATION DEFENSE IN THIS NONJURY ASSAULT TRIAL, EXERCISING ITS FACTUAL REVIEW POWER THE APPELLATE COURT REVERSED DEFENDANT’S CONVICTION (THIRD DEPT).

The Third Department, reversing defendant’s assault and criminal possession of a weapon convictions, determined that the People did not disprove the justification defense in this nonjury trial: At sentencing, County Court stated that it rejected defendant’s justification defense because it found that defense to be inconsistent with the multiple wounds on the victim’s face, neck […]

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THE ARBITRATOR-PANEL DID NOT HAVE THE AUTHORITY TO RECONSIDER A PARTIAL FINAL AWARD IN THIS DISPUTE BETWEEN AN INSURER AND THE INSURED, THE PANEL INITIALLY FOUND THAT A $10 MILLION SETTLEMENT PAID BY THE INSURED WAS NOT A COVERED LOSS, BUT SUBSEQUENTLY REVERSED ITSELF (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Kern, over a dissenting opinion, determined that the arbitrator-panel (JAMS) did not have the power to reconsider its initial finding (called a partial final award or PFA) that the $10 million settlement paid by Allied was not a “loss” within the meaning of the insurance policy […]

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