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Entries by Bruce Freeman

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DEPARTMENT OF AGRICULTURE’S RULE PROHIBITING DEPARTMENT INSPECTORS FROM RUNNING FOR PUBLIC OFFICE IS NOT AN UNCONSTITUTIONAL RESTRICTION OF FREE SPEECH (CT APP).

The Court of Appeals, in a one-sentence memorandum, over a two-judge dissent, determined that the Department of Agriculture's regulation which prohibits employees responsible for inspecting agricultural facilities (like milk plants) from seeking public office (i.e., a county legislator) was not an unconstitutional restriction of free speech. Matter of Spence v New York State Dept. of Agric. & […]

PARTY OBJECTING TO CONGRESSIONAL CANDIDATES’ NOMINATING PETITION DID NOT PROPERLY NOTIFY THE CANDIDATE OF THE OBJECTIONS, STATE BOARD OF ELECTIONS SHOULD NOT HAVE INVALIDATED THE PETITION (THIRD DEPT).

The Third Department, reversing the State Election Board, determined the nominating petition of a candidate for the US House of Representatives should not have been invalidated because the objecting party did not comply with the requirements for notifying the candidate of the objections: 9 NYCRR 6204.1 (b) provides that “[n]o specifications of objections to any […]

REMOVING RENTED AIR CONDITIONING EQUIPMENT FROM A HOSPITAL CONSTITUTED A COVERED “ALTERATION” WITHIN THE MEANING OF LABOR LAW 240 (1) (FIRST DEPT).

The First Department, reversing Supreme Court, in a full-fledged opinion by Justice Gesmer, determined that plaintiff's decedent was engaged in an “alteration” within the meaning of Labor Law 240 (1) when he was crushed by an air conditioning unit (a chiller) that was being hoisted. A hospital had rented the chiller as a supplement to the […]

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INSURER OF RESIDENTIAL MORTGAGE-BACKED SECURITIES NOT ENTITLED TO RECOVER ALL CLAIMS PAID OUT AS A RESULT OF 50% OF THE UNDERLYING MORTGAGES GOING INTO DEFAULT UNDER A FRAUD THEORY, ONLY A BREACH OF CONTRACT THEORY WAS AVAILABLE (FIRST DEPT).

The First Department, modifying Supreme Court, in a full-fledged opinion by Justice Manzanet-Daniels, determined plaintiff insurer's (MBAI's) motion for summary judgment should have been denied in its entirety in this action stemming from the insuring of residential mortgage-backed securities. MBAI sought to recover all the payments made after more than 50% of the mortgages underlying […]

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SIDEWALK DEFECT WAS NOT TRIVIAL AS A MATTER OF LAW, TRIVIALITY IS NOT A QUESTION OF DIMENSIONS ALONE, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE PROPERLY DENIED (FIRST DEPT).

The First Department determined that Supreme Court properly denied the defendants' motion for summary judgment in this sidewalk trip and fall case. There was a question of fact, raised by the plaintiff's expert, whether the defect was trivial as a matter of law: … [P]laintiff submitted an affidavit from an expert engineer who … found that […]

SENTENCING JUDGE MAY HAVE MISTAKENLY BELIEVED THE MINIMUM PERIOD OF POST RELEASE SUPERVISION (PRS) WAS FIVE YEARS WHEN IT ACTUALLY WAS TWO AND A HALF YEARS, MATTER SENT BACK FOR RESENTENCING (FIRST DEPT).

The First Department, over a dissent, sent the case back for resentencing because it appeared the sentencing judge was under the misimpression the minimum period of post release supervision (PRS) was five years, when the minimum was two and a half years: At the time of defendant's plea, the court, counsel, and the prosecution believed […]

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WHETHER THE POLICE RECEIVED VOLUNTARY CONSENT TO ENTER AN APARTMENT IS A MIXED QUESTION OF LAW AND FACT WHICH THE COURT OF APPEALS WILL NOT REVIEW, TWO CONCURRING OPINIONS DEALT WITH AN ISSUE WHICH WAS NOT RAISED, WHETHER THE POLICE WENT TO THE APARTMENT INTENDING TO MAKE A WARRANTLESS ARREST (CT APP).

The Court of Appeals, over two concurring opinions, determined that it could not review whether the police received voluntary consent to enter an apartment because it is a mixed question of law and fact and there is support in the record for the motion court's ruling. The concurring opinions dealt with an issue which was […]

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APPELLATE DIVISION APPLIED THE CORRECT CRITERIA IN ITS WEIGHT OF THE EVIDENCE ANALYSIS, DESPITE CITING SEVERAL DECISIONS THAT SHOULD NO LONGER BE FOLLOWED (CT APP).

The Court of Appeals, over a two-judge dissent, determined that the Appellate Division applied the correct analysis to its weight of the evidence review, despite the Appellate Division's citing of several decisions which should no longer be followed: The Appellate Division stated the correct standard of review when it concluded that, “viewing the evidence presented […]

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SUMMARY JUDGMENT DISMISSING THE OBJECTION THAT THE DECEDENT LACKED TESTAMENTARY CAPACITY WAS PROPERLY GRANTED, THE INQUIRY IS CONFINED TO THE TIME AT WHICH THE WILL IS SIGNED, TWO DISSENTERS (THIRD DEPT). ​

The Third Department, over a two-justice partial dissent, determined that Surrogate's Court properly granted summary judgment dismissing the objection that the decedent lacked testamentary capacity. … [E]vidence of decedent's diagnosis of dementia and declining cognitive abilities “does not, without more, create a question of fact on the issue of testamentary capacity, as the appropriate inquiry […]

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FAILURE TO WARN WAS NOT A SUBSTANTIAL CAUSE OF THE INJURIES AND DEATHS IN THIS PRODUCTS LIABILITY ACTION, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the manufacturer of a transformer base was entitled to summary judgment in this failure to warn action. Plaintiffs decedent fell asleep at the wheel, “drove up an embankment, struck a tree, rolled back down the embankment, and ran over a transformer base, which ruptured the gas tank […]

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