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Entries by Bruce Freeman

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ANY DEVIATIONS FROM THE STATE POLICE INVENTORY-SEARCH POLICY WERE MINOR AND DID NOT WARRANT SUPPRESSION OF THE HANDGUN FOUND IN THE SEARCH; THERE WAS A TWO-JUSTICE DISSENT (THIRDD DEPT).

The Third Department, reversing County Court’s suppression of a handgun found in an inventory search, determined any deviations from the State Police’s inventory-search procedure were minor and did not warrant suppression of evidence seized during the search: As for whether the trooper who conducted the search of the Kia sufficiently complied with that policy, County […]

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IN THIS TERMINATION OF PARENTAL RIGHTS PROCEEDING, ABSENT THE CONSENT OF THE PARTIES TO DISPENSE WITH IT, A DISPOSITIONAL HEARING MUST BE HELD AFTER THE COMPLETION OF THE FACT-FINDING HEARING (THIRD DEPT).

The Third Department determined the record supported termination of father’s parental rights, but the order must be reversed because the court failed to hold a dispositional hearing after the completion of the fact-finding hearing. The matter was remitted: Family Court erred in failing to hold a dispositional hearing. “Family Ct Act § 625 (a) expressly […]

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THE SIX-MONTH WAITING PERIOD ASSOCIATED WITH THE REVIVAL OF OTHERWISE TIME-BARRED ACTIONS PURSUANT TO THE CHILD VICTIMS ACT IS NEITHER A STATUTE OF LIMITATIONS NOR A CONDITION PRECEDENT; THEREFORE, PURSUANT TO FEDERAL PROCEDURAL LAW, THE SECOND CIRCUIT MAY RULE THAT DEFENDANT FORFEITED THE RIGHT TO A TIMELINESS DISMISSAL OF THE FEDERAL COMPLAINT (BASED ON THE ARGUMENT PLAINTIFF’S ACTION WAS PREMATURE) BY FAILING TO TIMELY RAISE THE ISSUE (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge Troutman, answering a certified question from the Second Circuit, determined the six-month waiting period associated with the revival of negligence actions pursuant to the Child Victims Act, creating a two-year window for the filing of otherwise time-barred actions, was neither a statute of limitations nor […]

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THE RECORD DOES NOT DEMONSTRATE THAT THE TOWN PLANNING BOARD TOOK THE REQUIRED “HARD LOOK” AT THE EFFECTS OF THE EMISSION OF HAZARDOUS AIR POLLUTANTS [HAPS] FROM THE PROPOSED “BIOSOLIDS REMEDIATION AND FERTILIZER PROCESSING FACILITY;” THE NEGATIVE DECLARATION WAS THEREFORE DEEMED ARBITRARY AND CAPRICIOUS (THIRD DEPT). ​

The Third Department, reversing Supreme Court’s dismissal of the Article 78 petition contesting the town planning board’s “negative declaration” regarding a proposed “biosolids remediation and fertilizer processing facility.” The record did not demonstrate that the planning board took the required “hard look” at the effects of the emissions from the facility. Instead the board relied […]

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MOTHER’S OBJECTIONS TO THE CHILD SUPPORT ORDER WERE NEVER SERVED ON FATHER’S COUNSEL; THE SUBSEQUENT ORDER GRANTING THE OBJECTIONS IS VOID (THIRD DEPT). ​

The Third Department, reversing Family Court, determined that the mother’s objections to the Support Magistrate’s child support order, which Family Court granted, should have been served on father’s counsel. Under the circumstances of the case, the failure to serve counsel rendered the related court orders void: Family Ct Act § 439 (e) directs that “[a] […]

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THE PROBATION CONDITION THAT DEFENDANT “SUPPORT DEPENDENTS AND MEET OTHER FAMILY RESPONSIBILITIES” WAS NOT TAILORED TO THE OFFENSE (CRIMINAL POSSESSION OF A WEAPON) AND WAS THEREFORE DELETED (SECOND DEPT). ​

The Second Department, deleting a condition of probation, determined that the condition that defendant “support dependents and meet other family responsibilities” was not tailored to the offense (criminal possession of a weapon): “Pursuant to Penal Law § 65.10(1), conditions of probation ‘shall be such as the court, in its discretion, deems reasonably necessary to insure […]

THE FEDERAL OFFENSE WHICH SERVED AS A PREDICATE FOR DEFENDANT’S SECOND-FELONY-OFFENDER DESIGNATION DOES NOT REQUIRE THAT THE FIREARM INVOLVED BE OPERABLE; THE RELEVANT NEW YORK FELONY OFFENSE INCLUDES OPERABILITY AS AN ELEMENT; THEREFORE THE FEDERAL OFFENSE IS NOT A VALID PREDICATE OFFENSE (SECOND DEPT).

The Second Department, vacating defendant’s second-felony-offender designation, determined the federal crime constituting the predicate offense was not a felony in New York  One of the elements of the relevant New York felony was that the firearm involved in the offense be operable. That element was missing from the federal offense: “Penal Law § 70.06 requires […]

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DENYING FATHER’S REQUEST FOR AN ADJOURNMENT IN THIS CUSTODY MODIFICATION PROCEEDING EFFECTIVELY DEPRIVED HIM OF HIS RIGHT TO TESTIFY AND HIS RIGHT TO A FULL AND FAIR EVIDENTIARY HEARING (SECOND DEPT).

The Second Department, reversing Family Court, determined the court improvidently exercised its discretion when it denied father’s request for an adjournment of the custody modification proceedings. Father was effectively denied his right to testify: “The granting of an adjournment rests in the sound discretion of the hearing court upon a balanced consideration of all relevant […]

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BARE ALLEGATIONS THAT A SCHOOL KNEW OR SHOULD HAVE KNOWN OF A TEACHER’S PROPENSITY TO ABUSE STUDENTS, UNSUPPORTED BY ANY FACTUAL ALLEGATIONS, ARE NOT ENOUGH TO STATE A CAUSE OF ACTION FOR NEGLIGENCE OR NEGLIGENT RETENTION (SECOND DEPT).

The Second Department, reversing Supreme Court in this Child Victims Act case against a school (Central Yeshiva), determined the complaint did not state causes of action for negligence or negligent retention of the teacher (Charitonov) who allegedly sexually abused the plaintiff. Bare allegations that the school knew or should have known of the teacher’s propensity […]

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WHERE THE ONLY RELIEF SOUGHT FOR BREACH OF FIDUCIARY DUTY IS MONEY DAMAGES, THE STATUTE OF LIMITATIONS IS THREE YEARS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the “breach of fiduciary duty” cause of action was subject to a three-year, not a six-year, statute of limitations and was time-barred: “‘New York law does not provide a single statute of limitations for breach of fiduciary duty claims’” … . Rather, “[t]he statute of limitations for a […]

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