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Entries by Bruce Freeman

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TOWN DID NOT HAVE WRITTEN NOTICE OF A RUSTY DRAINAGE PIPE IN THE WATER AT A TOWN BEACH AND WAS THEREFORE NOT LIABLE FOR THE INJURY TO THE INFANT PLAINTIFF WHO CUT HIS FOOT ON THE PIPE WHEN WALKING IN THE WATER (SECOND DEPT). ​

The Second Department determined a rusty drainage pipe under the water at a town beach was a culvert within the meaning of the town code, requiring written notice of the condition before the town could be held liable for an injury, Infant plaintiff cut his foot on the pipe when he was walking in the […]

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TOWN EXCEEDED ITS AUTHORITY AND VIOLATED A FEDERAL REGULATION WHEN IT ASSESSED CONSULTING FEES IN CONNECTION WITH PETITIONER’S REQUESTS FOR A SPECIAL USE PERMIT AND A VARIANCE TO CONSTRUCT A HAM RADIO ANTENNA ON PETITIONER’S PROPERTY (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Scheinkman, determined that the town's attempt to recover consulting fees and set up an escrow account in connection the petitioner's requests for a special use permit and a variance to construct an antenna for a ham radio exceeded the town's authority and was preempted by a […]

QUESTIONS OF FACT WHETHER THE GENERAL CONTRACTOR AND A STATUTORY AGENT OF THE PROJECT OWNER ARE LIABLE FOR THE INJURIES TO AN EMPLOYEE OF A SUBCONTRACTOR IN THIS LABOR LAW 240 (1) LADDER CASE (FIRST DEPT).

The First Department reversing (modifying) Supreme Court, determined that several causes of action in this Labor Law 240 (1) ladder-fall case should not have been dismissed. Plaintiff's employer (nonparty Capitol) was hired as a subcontractor by Ruggles, which had a contract for signage and awnings with the operator of the retail store for which the […]

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FAILURE TO APPRISE COUNSEL OF THE CONTENTS OF A JURY NOTE WAS A MODE OF PROCEEDINGS ERROR REQUIRING REVERSAL (FOURTH DEPT).

The Fourth Department reversed defendant's conviction because the trial judge did not fully advise counsel of the contents of a jury note: We agree with defendant that the court violated the core requirements of CPL 310.30 in failing to advise counsel on the record of the contents of a substantive jury note, and thereby committed […]

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FAILURE TO RULE ON A PORTION OF DEFENDANT’S MOTION TO VACATE HIS CONVICTION IS NOT A DENIAL, DECISION ON APPEAL RESERVED AND MATTER REMITTED FOR A RULING (FOURTH DEPT).

The Fourth Department noted that a failure to rule on a portion of a motion cannot be deemed a denial. Therefore the decision on appeal was reserved and the matter sent back for a ruling: Defendant appeals from an order insofar as it failed to grant that part of his pro se motion seeking DNA […]

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APPEAL HELD IN RESERVE AND THE MATTER SENT BACK FOR A RECONSTRUCTION HEARING TO DETERMINE WHETHER THE TRIAL JUDGE APPRISED DEFENSE COUNSEL OF THE ENTIRE CONTENTS OF A JURY NOTE (FOURTH DEPT).

The Fourth Department reserved decision and sent the matter back for a reconstruction hearing concerning whether the trial judge apprised defense counsel of the entire contents of a jury note. The court reporter submitted an affidavit indicating the transcript is incomplete and the judge's remarks about the jury note were inadvertently omitted: … [T]he People […]

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UNCORROBORATED HEARSAY OF ONE OF THE CHILDREN SHOULD NOT HAVE BEEN RELIED UPON BY THE COURT, NEGLECT FINDING REVERSED IN THE INTEREST OF JUSTICE (FOURTH DEPT).

The Fourth Department reversed Family Court's neglect finding in the interest of justice, in part because the finding relied on the uncorroborated hearsay testimony of the child: … [T]he court determined that the mother neglected the children by forgetting to feed them, but the only evidence of such a danger is the uncorroborated out-of-court statement of […]

COURT IMPROPERLY INCLUDED A PROVISION IN THE ORDER DENYING MOTHER’S PETITION TO RELOCATE WHICH WOULD AUTOMATICALLY AWARD CUSTODY TO FATHER IF MOTHER RELOCATES (FOURTH DEPT).

The Fourth Department, in affirming the denial of mother's petition to relocate, determined the portion of the order which provided that father would automatically be granted custody upon mother's relocation: … [The] court erred in including a provision in the order that transferred primary physical custody of the child from the mother to the father […]

FAMILY COURT SHOULD HAVE COMPLETED THE HEARING, AWARD OF PRIMARY PHYSICAL CUSTODY OF THE CHILDREN TO THE MATERNAL GRANDMOTHER REVERSED (FOURTH DEPT). ​

The Fourth Department, reversing Family Court, determined primary physical custody of the children should not have been awarded to the maternal grandmother because the proceedings were flawed: “[A]s between a parent and a nonparent, the parent has a superior right to custody that cannot be denied unless the nonparent establishes that the parent has relinquished […]

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OWNER OF PROPERTY WHERE THE EMPLOYEE SLIPPED AND FELL WAS NOT AN ADDITIONAL INSURED UNDER THE EMPLOYER’S POLICY, EMPLOYER FURNISHED THE CONDITION FOR THE SLIP AND FALL BUT DID NOT PROXIMATELY CAUSE THE SLIP AND FALL (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined that Pioneer Middle School was not an additional insured under the policy which insured of the employer (Kleanerz) of Ayers, who slipped and fell on ice and snow in the Pioneer Middle School parking law: We conclude that Pioneer is not an additional insured under the policy inasmuch as […]

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