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Entries by Bruce Freeman

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EVIDENCE DEFENDANT HAD PREVIOUSLY BEEN CONVICTED OF STEALING A CAR SHOULD NOT HAVE BEEN ADMITTED TO SHOW KNOWLEDGE AND INTENT IN THIS CAR THEFT CASE, KNOWLEDGE AND INTENT CAN BE INFERRED FROM THE ACT, ERROR HARMLESS HOWEVER (SECOND DEPT).

The Second Department noted that evidence of a prior conviction of criminal possession of stolen property (a car) should not have been admitted as Molineux evidence to show knowledge and intent in this prosecution for the same genre of offense. Knowledge and intent can be inferred from possession of the car, which was taken by […]

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RELEASE ENTERED WITH THE INSURER OF THE OTHER CAR INVOLVED IN THE ACCIDENT PRECLUDED CLAIM FOR SUPPLEMENTARY UNDERINSURED MOTORIST (SUM) BENEFITS AGAINST INSURER OF THE CAR IN WHICH APPELLANT WAS A PASSENGER (SECOND DEPT).

The Second Department determined a release entered after settlement with the insurer of the other car involved in the accident precluded appellant’s attempt to claim supplementary underinsured motorist (SUM) benefits from the insurer of the car in which appellant was a passenger: “A release is a contract, and its construction is governed by contract law” […]

ATTORNEY HIRED FOR DOCUMENT REVIEW WAS AN EMPLOYEE ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS, DESPITE THE ATTORNEY’S SIGNING A DOCUMENT INDICATING SHE WAS AN INDEPENDENT CONTRACTOR (THIRD DEPT).

The Third Department determined claimant, an attorney hired to do document review, was an employee of a law firm (Brody) entitled to unemployment insurance benefits, despite the attorney’s signing a document indicating she was an independent contractor: The record reflects that Brody paid claimant an hourly set wage, required her to work at least 10 […]

TUTOR WAS AN EMPLOYEE OF THE TUTORING SERVICE ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT). ​

The Third Department determined a tutor employed by a tutoring service, Mulberry, was an employee entitled to unemployment insurance benefits: Mulberry did not advertise for tutors, but received inquiries directly from potential tutors who heard about Mulberry through various means. It then collected their resumes and notified them when an opening became available. When claimant […]

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NO PRIVATE RIGHT OF ACTION FOR NEGLIGENT PERFORMANCE OF A GOVERNMENTAL FUNCTION AGAINST THE BOARD OF PAROLE (THIRD DEPT).

The Third Department determined the claimant, an inmate, did not have a private right of action for negligent performance of a governmental function against the Board of Parole. Claimant alleged the board did not comply with the Executive Law by promulgating certain written procedures for assessing an inmate’s eligibility for parole: Inasmuch as Executive Law […]

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PLAINTIFF STATED A CAUSE OF ACTION FOR EMPLOYMENT DISCRIMINATION UNDER THE NYC HUMAN RIGHTS LAW, WHICH WAS DEEMED BROADER IN SCOPE THAN THE STATE HUMAN RIGHTS LAW, PLAINTIFF ALLEGED HER SUPERVISOR SQUEEZED HER THIGH AND HER REJECTION OF THAT ADVANCE RESULTED IN HER BEING TREATED LESS WELL THAN OTHER EMPLOYEES THEREAFTER (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Moulton, over an extensive two-justice dissenting opinion, determined plaintiff had stated a cause of action for gender discrimination under the NYC Human Rights Law, which was deemed broader in scope than the state Human Rights Law. Plaintiff alleged she was treated less well than other employees after […]

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CITY WAS IMMUNE FROM SUIT BASED UPON THE HANDLING OF A DECEASED PERSON DURING HURRICANE SANDY AND NO SPECIAL RELATIONSHIP WAS DEMONSTRATED WITH THE CITY (FIRST DEPT).

The First Department determined the city was immune from suit stemming from alleged interference with the right of sepulcher during Hurricane Sandy, which flooded the Bellevue Hospital morgue. The court further determined there was no special relationship between plaintiff and the city: Contrary to plaintiffs’ argument, the right of sepulcher does not, by definition, trump governmental […]

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THE LOW AND MODERATE INCOME APARTMENT BUILDING WAS SUBJECT TO FEDERAL HUD REGULATION UNTIL THE HUD MORTGAGE WAS PAID OFF IN 2011, AFTER THAT THE BUILDING WAS SUBJECT TO THE NYC RENT STABILIZATION LAW (FIRST DEPT).

The First Department, in this suit against the landlord by the tenant’s association, determined the apartment building for low and moderate income tenants was subject to federal Housing and Urban Development (HUD) regulation until the HUD mortgage was paid off in April, 2011. Once the mortgage was paid off, the building became subject to the Rent […]

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CRITERIA FOR DETERMINING WHETHER A PROTECTIVE ORDER PROHIBITING THE DEPOSITION OF OPPOSING COUNSEL SHOULD BE GRANTED EXPLAINED, MATTER REMANDED (FIRST DEPT).

The First Department, over a concurring memorandum, defined the procedure for determining whether opposing counsel can be deposed. Counsel had requested a protective order prohibiting the deposition. The matter was remanded for a ruling based upon the criteria described as follows: … [D]efendants’ counsel has made a prima facie showing that the material sought is irrelevant […]

WORKERS’ COMPENSATION CARRIER ENTITLED TO REIMBURSEMENT OF BOTH TEMPORARY TOTAL DISABILITY PAYMENTS AND TEMPORARY PARTIAL DISABILITY PAYMENTS (THIRD DEPT).

The Third Department determined the workers’ compensation carrier was entitled to reimbursement of both the temporary total disability and temporary partial disability payments in the years preceding the schedule loss of use (SLU) award by the Workers’ Compensation Law Judge. Claimant argued that, based on the wording of the statute, the carrier was entitled to […]

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