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Entries by Bruce Freeman

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DENIAL OF A REPORTER’S MOTION TO QUASH A SUBPOENA FOR EVIDENCE OF HER JAILHOUSE INTERVIEW OF THE DEFENDANT IN A CRIMINAL PROCEEDING IS NOT APPEALABLE (CT APP).

The First Department, upon remittitur from the Ct. of Appeals, held that the denial of a reporter’s motion to quash a subpoena for evidence of her jailhouse interview of the defendant is not appealable: “[N]o appeal lies from an order arising out of a criminal proceeding absent specific statutory authorization” (Matter of People v Juarez , […]

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DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN PLAINTIFF FIREFIGHTER’S GENERAL MUNICIPAL LAW 205-a ACTION SHOULD NOT HAVE BEEN GRANTED (CT APP).

The Court of Appeals, in a brief memorandum decision with no discussion of the facts, determined the defendant's motion for summary judgment in this General Municipal Law 205-a action by a firefighter should not have been granted: With respect to the General Municipal Law § 205-a cause of action, defendant's submissions of a certificate of […]

“OPPORTUNITY TO BALLOT” REMEDY AVAILABLE WHERE SIGNATURES ON A NOMINATING PETITION INVALIDATED FOR A TECHNICAL DEFECT AND THE PARTY WOULD BE LEFT WITHOUT A CANDIDATE (FOURTH DEPT).

The Fourth Department determined, pursuant to the “opportunity to ballot” remedy, 24 signatures on a nominating petition should not have been invalidated because the signatures had appeared on a prior nominating petition for a candidate who had withdrawn: … [T]he equitable remedy of opportunity to ballot is appropriate here … . The remedy of an […]

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IN THIS QUI TAM (WHISTLEBLOWER) ACTION THE COMPLAINT SUFFICIENTLY ALLEGED DEFENDANT CAPTIVE INSURANCE COMPANY FILED FALSE TAX RETURNS AND TERMINATED THE WHISTLEBLOWER FOR RAISING HIS CONCERNS WITH HIS SUPERIORS (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Manzanet-Daniels, determined a qui tam (whistleblower) action alleging a captive insurance company (Moody's) violated the New York False Claims Act (NYFCA) by filing false tax returns properly survived the motion to dismiss. The court further held that the relator's retaliation claim, alleging unlawful termination of employment for […]

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COMPLAINT ALLEGING BREACH OF A JOINT VENTURE AGREEMENT SHOULD HAVE BEEN DISMISSED, TWO ESSENTIAL ELEMENTS OF A JOINT VENTURE, SHARING COSTS AND CONTROL, WERE ABSENT (FIRST DEPT).

The First Department, reversing Supreme Court, determined the underlying breach of contract complaint should have been dismissed. Plaintiff alleged the contract created a joint venture. But the absence of an agreement to share costs and control precluded any finding that a joint venture had been formed by the contract: In order to properly plead the existence […]

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ALTHOUGH SUPREME COURT USED THE WRONG STANDARD OF PROOF, THE FINDING THAT DEFENDANT’S TESTIMONY AT THE HEARING ON HIS MOTION TO VACATE HIS CONVICTION WAS NOT CREDIBLE JUSTIFIED DENIAL OF THE MOTION, DEFENDANT, WHO HAS BEEN DEPORTED, ARGUED HE WOULD NOT HAVE PLED GUILTY BUT FOR HIS ATTORNEY’S ASSURANCE HE WOULD NOT BE SUBJECT TO DEPORTATION (FIRST DEPT).

The First Department determined defendant's motion to vacate his conviction based upon ineffective assistance of counsel was properly denied. Seventeen years ago defendant pled guilty after being informed by his lawyer that he would not be subject to deportation. Although the First Department agreed that Supreme Court used the wrong standard of proof for analyzing […]

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HOMEOWNER EXEMPTION APPLIED TO THE CHURCH IN THIS LABOR LAW 240 (1), 241 (6) AND 200 ACTION STEMMING FROM A FALL FROM A SCAFFOLD, FAILURE TO PLEAD THE EXEMPTION AS A DEFENSE DID NOT PRECLUDE RAISING IT IN A SUMMARY JUDGMENT MOTION, ARCHDIOCESE WAS NOT AN AGENT OF THE OWNER, NO LABOR LAW 200 LIABILITY BECAUSE PLAINTIFF’S EMPLOYER SUPERVISED AND CONTROLLED THE MEANS AND MANNER OF WORK (FIRST DEPT).

The First Department, modifying Supreme Court, determined defendant church demonstrated it was entitled to the homeowner exemption from liability in this Labor Law 240 (1) and 241 (6) actions stemming from plaintiff's fall from a scaffold. The failure to plead the exemption as a defense did not preclude raising it in the summary judgment motion. The […]

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ADJOURNMENT IN CONTEMPLATION OF DISMISSAL WHICH HAS RESULTED IN DISMISSAL IS NOT APPEALABLE (SECOND DEPT).

The Second Department determined no appeal lies from an adjournment in contemplation of dismissal (ACD) which has resulted in dismissal: “It is a fundamental principle of our jurisprudence that the power of a court to declare the law only arises out of, and is limited to, determining the rights of persons which are actually controverted […]

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OUT-OF-STATE AFFIDAVIT RAISED A QUESTION OF FACT WHETHER DEFENDANT WAS AWARE OF THE DOG’S VICIOUS PROPENSITIES IN THIS DOG BITE CASE, THE AFFIDAVIT WAS ADMISSIBLE DESPITE ABSENCE OF A CERTIFICATE OF CONFORMITY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant's motion for summary judgment in this dog bite case should not have been granted. An affidavit from plaintiff's neighbor raised a question of fact whether defendant was aware of the dog's vicious propensities. The Second Department further determined that the fact that the out-of-state affidavit was not […]

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PLAINTIFF DID NOT ALLEGE OR DEMONSTRATE IN THE OPPOSING PAPERS THAT ANY OF THE ESPINAL EXCEPTIONS APPLIED TO DEFENDANT SNOW-REMOVAL CONTRACTOR IN THIS SLIP AND FALL CASE, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the snow-removal contractor's (Critics Choice's) motion for summary judgment in this slip and fall case should have been granted. Because plaintiff did not allege a violation of any of the Espinal factors, Critics Choice's demonstration that plaintiff was not a party to the snow removal contract was sufficient to warrant […]

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