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Entries by Bruce Freeman

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FAMILY COURT SHOULD NOT HAVE RULED ON MOTHER’S PETITION TO MODIFY CUSTODY WITHOUT HOLDING A HEARING, FAMILY COURT IMPROPERLY RELIED SOLELY UPON AN IN CAMERA INTERVIEW WITH THE CHILD AND UNSWORN DOCUMENTS FROM MENTAL HEALTH SERVICES AND THERAPISTS (FIRST DEPT).

The First Department determined Family Court should not have ruled on mother's petition to modify custody without holding a hearing. In addition the First Department noted that Family Court improperly relied solely upon the child's wishes and unsworn documentary evidence: Family Court improperly determined the mother's modification petition and the father's petitions for enforcement, parenting […]

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PLAINTIFF, A LEGAL RESIDENT OF THE US, PLED GUILTY TO AN ELECTION LAW VIOLATION, PLAINTIFF’S COMPLAINT STATED CAUSES OF ACTION FOR LEGAL MALPRACTICE STEMMING FROM ALLEGED ADVICE THAT TRAVELING ABROAD WOULD NOT HAVE DETRIMENTAL IMMIGRATION CONSEQUENCES, PLAINTIFF WAS DETAINED FOR FOUR MONTHS WHEN HE ATTEMPTED TO RETURN FROM TRAVEL ABROAD (FIRST DEPT).

The First Department determined plaintiff's legal malpractice action based upon advice to plead guilty to an election law violation was not viable because he pled guilty without any assertion of innocence. However, the legal malpractice action based upon the advice that his travel abroad would not affect his immigration status was viable. Plaintiff, a legal […]

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DEFENDANT’S ATTORNEY DID NOT PROVIDE EFFECTIVE ASSISTANCE OF COUNSEL BY CONCEDING DEFENDANT SUFFERED FROM A DANGEROUS MENTAL DISORDER AND THEREBY EFFECTIVELY WAIVING A HEARING TO DETERMINE THE APPROPRIATE TRACK FOR DEFENDANT’S TREATMENT-CIVIL CONFINEMENT (FIRST DEPT).

The First Department, reversing Supreme Court, in a full-fledged opinion by Justice Tom, determined defendant did not receive effective assistance of counsel when counsel conceded that defendant had a dangerous mental disorder requiring civil confinement. There was no strategic justification for waiving a CPL 330.20 hearing to determine which treatment/confinement track was appropriate for defendant: … […]

CORRECTION OFFICER’S FALL DOWN A STAIRWAY WAS PROXIMATELY CAUSED BY THE ACT OF AN INMATE, THE RESULTING DISABILITY IS THEREFORE COMPENSABLE (THIRD DEPT).

The Third Department, annulling the hearing officer’s decision, determined that petitioner, a county correction officer, suffered a disability that resulted from the act of an inmate and was therefore compensable: … [W]e find that petitioner has demonstrated that the injuries that he sustained from his fall occurred “contemporaneously with, and flowed directly, naturally and proximately from, […]

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SHOULDER INJURY WHICH OCCURRED WHEN CLAIMANT SCANNED HER PARKING PASS TO ENTER A PARKING GARAGE USED BY EMPLOYEES WAS NOT COMPENSABLE, TWO JUSTICE DISSENT (THIRD DEPT). ​

The Third Department, over a two-justice dissent, affirmed the Workers' Compensation Board's finding that claimant's shoulder injury was not compensable because it did not arise out of and in the course of her employment. Claimant's injury occurred when she scanned her parking pass to enter a parking garage. The garage was not owned by her employer, […]

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NEGLECT FINDING AGAINST MOTHER AND FATHER BASED UPON THE CHILD’S BRUISES NOT SUPPORTED BY THE EVIDENCE (SECOND DEPT).

The Second Department, reversing Family Court, determined that the proof did not support a finding that either parent had neglected the child. Apparently mother's boyfriend had spanked the child and bruising appeared over time. Mother had no reason to suspect her boyfriend would mistreat the child and the parents could not be faulted for not […]

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PARTIES’ CONSENT TO A DNA TEST DID NOT ELIMINATE THE NEED FOR A HEARING TO DETERMINE WHETHER AN ACKNOWLEDGEMENT OF PATERNITY NEARLY 20 YEARS AGO WAS THE PRODUCT OF FRAUD, FAMILY COURT PROPERLY FOUND THAT FRAUD WAS NOT ESTABLISHED (SECOND DEPT).

The Second Department determined the parties' consent to a DNA test did not eliminate the need for a hearing on the vacation of the the acknowledgment of paternity on the basis of fraud: On November 22, 1998, an acknowledgment of paternity was executed with respect to the subject child, which contained the signatures of the mother […]

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LAW OFFICE FAILURE ALLEGATIONS INSUFFICIENT TO WARRANT VACATING A DEFAULT JUDGMENT (SECOND DEPT).

The Second Department determined the law-office-failure allegations were insufficient to warrant vacating a default judgment: While the court has the discretion to accept law office failure as a reasonable excuse (see CPLR 2005…), “[a] party attributing his or her default to a former attorney must provide a detailed and credible explanation of the default. Conclusory and […]

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IN A DISPUTE BETWEEN A HOSPITAL AND A DOCTOR CONCERNING A CHARITABLE GIFT TO THE HOSPITAL, DISQUALIFICATION OF THE DOCTOR’S LAW FIRM WAS PROPER, A LAWYER AT THE FIRM WAS ON THE HOSPITAL’S BOARD OF TRUSTEES (SECOND DEPT).

The Second Department determined the petitioner hospital's motion to disqualify an attorney. The underlying matter concerned a revocable trust related to a charitable gift to the hospital in the amount of $75 million. The oncologist, Williams, who treated the man who made the gift hired a law firm to represent him in the trust proceedings. […]

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