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Entries by Bruce Freeman

ALTHOUGH DEFENDANTS, RESIDENTS OF ISRAEL, HAD TIMELY NOTICE OF A NEW YORK LAWSUIT, THE PROCESS SERVER’S AFFIDAVIT INDICATES DUE DILIGENCE IN A FAILED ATTEMPT TO SERVE DEFENDANTS AT A NEW YORK ADDRESS, BECAUSE DEFENDANTS WERE NEVER SERVED, THE DEFAULT JUDGMENT IS A NULLITY (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined that, although defendants received timely notice of a lawsuit, they were never served with the summons and complaint. The affidavit of the process server demonstrated due diligence in a failure to serve defendants, residents of Israel, at a New York address. The default judgment, therefore, was a nullity: […]

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MOTION TO SET ASIDE THE CONVICTION PROPERLY DENIED, EVIDENCE IN AN UNSWORN PRESENTENCE REPORT DID NOT MEET THE STATUTORY CRITERIA FOR THE MOTION (SECOND DEPT).

The Second Department determined defendant's motion to set aside his conviction was properly denied. The defendant argued that the complainant's version of events as stated in the presentence report was newly discovered evidence because it differed from the complainant's trial testimony. The court held that the unsworn presentence report did not meet the statutory requirements […]

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DEFENDANT IMPROPERLY SENTENCED AS A SECOND FELONY OFFENDER, ISSUE REVIEWED IN THE INTEREST OF JUSTICE (SECOND DEPT).

The Second Department, vacating defendant’s sentence, determined defendant was improperly sentenced as a second felony offender. The issue was not preserved but was reviewed in the interest of justice: The predicate felony statement filed by the People did not set forth the dates of the defendant’s incarceration since the commission of his prior felony in […]

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JURY SHOULD HAVE BEEN INSTRUCTED ON LESSER INCLUDED OFFENSES, EVIDENCE OF DEFENDANT’S PRETRIAL SILENCE SHOULD NOT HAVE BEEN ADMITTED, PROSECUTORIAL MISCONDUCT REVIEWED IN THE INTEREST OF JUSTICE, MISCONDUCT ALONE SUFFICIENT TO WARRANT REVERSAL (SECOND DEPT).

The Second Department, reversing defendant's conviction, determined the jury should have been instructed on a lesser included offense, evidence of defendant's pretrial silence should not have been admitted, and there was misconduct on the part of the prosecutor. The prosecutorial misconduct issues were not preserved, but the issues were reviewed in the interest of justice. […]

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CRITERIA FOR ADMISSION OF EVIDENCE OF UNCHARGED CRIMES AND BAD ACTS EXPLAINED, EVIDENCE OF PRIOR DOMESTIC ABUSE PROPERLY ADMITTED IN THIS CRIMINAL CONTEMPT PROSECUTION (SECOND DEPT).

The Second Department determined evidence of prior domestic abuse was properly admitted in this criminal contempt proceeding. The court explained the criteria for the admission of evidence of uncharged crimes and bad acts (Molineux evidence): “[E]vidence of a defendant's uncharged crimes or prior misconduct is not admissible if it cannot logically be connected to some […]

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INSURER OF NEW YORK DRIVER INVOLVED IN AN ACCIDENT WHILE DRIVING A U-HAUL VEHICLE IN NORTH CAROLINA DID NOT HAVE SUFFICIENT CONTACTS WITH NORTH CAROLINA TO WARRANT THE IMPOSITION OF LONG-ARM JURISDICTION IN A NORTH CAROLINA ACTION, THE NEW YORK ACTION SEEKING DOMESTICATION OF A NORTH CAROLINA DEFAULT JUDGMENT SHOULD HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversing Supreme Court, in a full-fledged opinion by Justice Singh, in a matter of first impression, determined that the insurer of a New York State driver (Country-Wide) did not have sufficient contacts with North Carolina, where a U-Haul vehicle driven by the New York driver rear-ended the injured parties, to provide New York with […]

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THE FIRST EMPLOYMENT AGREEMENT INCLUDED A FORUM SELECTION CLAUSE, THE SECOND AGREEMENT REQUIRED ARBITRATION, THE SECOND AGREEMENT SUPERSEDED THE FIRST (FIRST DEPT).

The First Department, reversing Supreme Court, determined that an agreement signed after the employment agreement superseded the employment agreement. Therefore the dispute was subject to arbitration based upon the second agreement: After [plaintiff] and defendant Mirae Asset Securities (USA) Inc. had entered into an employment agreement which contained a forum selection clause, plaintiff executed a “Uniform […]

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PRODUCTS LIABILITY AND NEGLIGENCE CAUSES OF ACTION CONCERNING THE METHODS OF SECURING A MOTORCYCLE HELMET PROPERLY SURVIVED SUMMARY JUDGMENT, SUPREME COURT PROPERLY CONSIDERED PLAINTIFF’S UNTIMELY OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (FIRST DEPT).

The First Department determined the products liability and negligence causes of action against the manufacturer of a motorcycle helmet properly survived summary judgment. There are two parts to securing the helmet with a strap—a D-ring fastener and a snap. Plaintiff used only the snap and was injured, allegedly as a result of the failure of […]

SENTENCING JUDGE INDICATED HE WAS BOUND BY AN AGREEMENT WITH THE PEOPLE CONCERNING DEFENDANT’S SENTENCE, HOWEVER, A SENTENCING JUDGE HAS DISCRETION IN SENTENCING, MATTER REMITTED FOR RESENTENCING (FOURTH DEPT).

The Fourth Department, vacating defendant's sentence, determined it appeared the sentencing judge mistakenly believed he was bound by his agreement with the People to impose a particular sentence: County Court initially imposed a one-year term of interim probation. The court informed defendant that, if he complied with the terms of interim probation, the court would […]

INMATE’S ‘THREAT’ TO BRING A LAWSUIT WAS NOT AN ACTIONABLE RULE VIOLATION (FOURTH DEPT).

The Fourth Department, annulling the “threats” charge, determined that the “threat” to file a lawsuit was not a proper basis for the charge: … [R]espondent's determination of guilt on the threats charge under inmate rule 102.10 must be annulled. Although respondent correctly notes that “an inmate need not threaten violence in order to be found […]

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