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Entries by Bruce Freeman

IN THIS LABOR LAW 240(1), 241(6) AND 200 ACTION, THERE WAS A QUESTION OF FACT WHETHER DEFENDANT WAS AN OWNER OF THE PROPERTY WHERE PLAINTIFF WAS INJURED BY A FALLING OBJECT, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined there were questions of fact whether defendant 101 Norfolk was an owner within the meaning of Labor Law 240(1), 241(6) and 200. Plaintiff was injured by a falling object: Contrary to the defendant 101 Norfolk's contention, it cannot be said, as a matter of law, that the defendant […]

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DEFENDANT’S LEVEL THREE SEX OFFENDER ADJUDICATION SHOULD NOT HAVE BEEN VACATED, HIS SENTENCE ON A SEX OFFENSE WAS INTERRUPTED WHEN THE PAROLE BOARD DECLARED HIM DELINQUENT, WHEN DEFENDANT RETURNED TO STATE CUSTODY AFTER A SUBSEQUENT MURDER CONVICTION, HIS SEX OFFENSE SENTENCE RESUMED MAKING HIM SUBJECT TO SORA (SECOND DEPT).

The Second Department determined the defendant's level three sex offender adjudication should not have been vacated on the ground that defendant had completed his sex offense sentence in 1980, well before SORA went into effect in 1996. The Second Department held that defendant's sentence had been interrupted in 1979 when the Parole Board declared him […]

DENIAL OF A LATE PEREMPTORY CHALLENGE TO A JUROR WAS AN ABUSE OF DISCRETION, NEW TRIAL ORDERED (SECOND DEPT).

The Second Department determined Supreme Court abused its discretion in denying a late peremptory challenge to a juror and ordered a new trial: … [C]ounsel for codefendant Rodger Freeman stated, “There was one we missed, number eight.” The court responded, “We have eight.” In response, counsel for codefendant Rodger Freeman stated, “We don't want eight.” […]

EVIDENCE NOT SUFFICIENT TO DEMONSTRATE SIDEWALK DEFECT WAS TRIVIAL, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE PROPERLY DENIED (SECOND DEPT).

The Second Department determined the owners of property abutting the sidewalk where plaintiff fell did not present sufficient evidence to warrant summary judgment in this slip and fall case. The defendant-owners (Millers) argued the defect was trivial: “A defendant seeking dismissal of a complaint on the basis that the alleged defect is trivial must make […]

PLAINTIFF INJURED WHEN, AFTER CONSUMING ALCOHOL, HE DOVE INTO A SHALLOW PART OF DEFENDANT’S POOL, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT PROPERLY GRANTED (SECOND DEPT).

The Second Department determined defendant property owner's motion for summary judgment was properly granted in this swimming pool injury case: After consuming alcohol, the plaintiff ran out of the defendant's house and dove headfirst into the defendants' pool, striking his forehead on the bottom of the pool. The plaintiff commenced this action against the defendants […]

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MOTION TO VACATE DEFENDANT’S CONVICTION SHOULD NOT HAVE BEEN GRANTED, EVIDENCE ALLEGEDLY WITHHELD FROM THE DEFENSE WAS NOT BRADY MATERIAL (SECOND DEPT).

The Second Department reversed the vacation of defendant's conviction by the motion court, finding that the evidence which defendant alleged had not been turned over to the defense was not Brady material: The defendant was charged with murder in the second degree, among other crimes, in connection with the shooting death of Tracey Thomas on October 22, 1993. […]

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JUDGE CONDUCTED EXCESSIVE QUESTIONING OF WITNESSES, NEW TRIAL WITH A DIFFERENT JUDGE ORDERED (SECOND DEPT).

he Second Department ordered a new trial because the judge conducted excessive questioning of trial witnesses: … [T]here must be a new trial, before a different justice, because the Supreme Court conducted excessive and prejudicial questioning of trial witnesses. Although defense counsel did not object to most instances of judicial interference, we reach this contention […]

NEGLIGENCE, AS OPPOSED TO STRICT LIABILITY, THEORY DID NOT APPLY TO INJURY FROM A HORSE WHICH WAS STARTLED WHEN THREE HORSES ESCAPED FROM A PADDOCK AND GALLOPED TOWARD THE BARN WHERE PLAINTIFF WAS GROOMING THE HORSE WHICH INJURED HER (SECOND DEPT).

The Second Department determined strict liability, not negligence, criteria applied to injury from a horse. Because the defendant demonstrated the escaped horses were domesticated animals and plaintiff did not allege the horses had vicious propensities, the complaint was properly dismissed: The plaintiff alleges that she was injured while grooming a stallion in the barn at […]

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ALTHOUGH THE DNA EVIDENCE PRESENTED BY A CRIMINALIST WAS IN PART TESTIMONIAL, THE DEFENDANT’S RIGHT TO CONFRONTATION WAS NOT VIOLATED AND THE EVIDENCE WAS PROPERLY ADMITTED (SECOND DEPT).

The Second Department determined that, although the DNA evidence presented by a criminalist was in part testimonial, it was properly admitted: At trial, the Supreme Court admitted DNA profiles and reports, as well as the testimony of an expert in DNA analysis, pertaining to the five victims and the defendant. The expert, Craig O'Connor, testified […]

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LAW OFFICE FAILURE WAS AN INADEQUATE EXCUSE FOR PLAINTIFF’S FAILURE TO APPEAR AT A SCHEDULED COURT CONFERENCE IN A FORECLOSURE ACTION (SECOND DEPT).

The Second Department determined plaintiff's motion to vacate the dismissal of a foreclosure action was properly denied. Plaintiff failed to appear at a scheduled court conference and the law-office-failure excuse was deemed inadequate: In order to vacate a default in appearing at a scheduled court conference, a plaintiff must demonstrate both a reasonable excuse and […]

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