You are here: / Bruce Freeman

Entries by Bruce Freeman

FAILURE TO WARN CAUSE OF ACTION IN THIS PRODUCTS LIABILITY CASE PROPERLY SURVIVED SUMMARY JUDGMENT, PLAINTIFF’S CLOTHES CAUGHT FIRE WHEN SHE STOOD NEAR A PROPANE HEATER, QUESTIONS OF FACT WHETHER THE WARNING WAS ADEQUATE AND WHETHER FAILURE TO WARN WAS A PROXIMATE CAUSE (THIRD DEPT).

The Third Department determined defendants’ motion for summary judgment on the “failure to warn” cause of action in this products liability case was properly denied. Plaintiff’s clothing caught fire when she stood near a propane heater manufactured and sold by defendants: Plaintiff submitted the pertinent ANSI standard for warning labels on unvented propane heaters, which […]

WAIVER OF INDICTMENT AND SUPERIOR COURT INFORMATION (SCI) WERE JURISDICTIONALLY DEFECTIVE, THE SCI DID NOT CONTAIN A CHARGE HELD FOR THE ACTION OF A GRAND JURY OR A LESSER INCLUDED OFFENSE (THIRD DEPT).

The Third Department, reversing defendant’s plea to a superior court information (SCI), determined the SCI did not contain a charge held for the action of a grand jury or a lesser included offense. Therefore the SCI was jurisdictionally defective: … [T]he waiver of indictment and SCI were jurisdictionally defective because the crime charged in the […]

IT IS NOT REVERSIBLE ERROR FOR DEFENDANT TO NOT BE PRESENT AT A SIDEBAR WHICH RESULTS IN GRANTING A PEREMPTORY OR FOR CAUSE CHALLENGE TO A JUROR, AN ORDER OF PROTECTION SHOULD NOT HAVE BEEN ISSUED FOR A FACT WITNESS WHO DID NOT ACTUALLY SEE THE SHOOTING (THIRD DEPT).

The Third Department affirmed defendant’s conviction and noted (1) it is not reversible error if defendant is not present at a sidebar which results in the grant of a peremptory or for cause challenge to a juror, and (2) an order of protection cannot be issued on behalf of someone who did not actually witness […]

,

QUESTION OF FACT WHETHER GENERAL CONTRACTOR’S REMOVAL OF A TANK EXPOSING AN OPENING LAUNCHED AN INSTRUMENT OF HARM IMPOSING CONTRACT-BASED LIABILITY, FACT THAT OPENING WAS OBVIOUS AND KNOWN TO PLAINTIFF SPEAKS TO COMPARATIVE NEGLIGENCE AND DID NOT WARRANT SUMMARY JUDGMENT IN FAVOR OF DEFENDANTS (FIRST DEPT).

The First Department, over a two-justice dissent, determined that the general contractor’s (Harbour’s) motion for summary judgment in this slip and fall case was properly denied. Plaintiff alleged that Harbour removed a tank and exposed a dangerous opening in a metal plate. Plaintiff alleged, while working at the site, he stepped backwards into the opening […]

, ,

UPON REMITTITUR FROM THE COURT OF APPEALS, DEFENDANT’S IDENTITY THEFT CONVICTION AFFIRMED, DEFENDANT ATTEMPTED TO PURCHASE ITEMS USING A CREDIT CARD AND DRIVER’S LICENSE WITH A FICTITIOUS NAME (FIRST DEPT)

The First Department, upon remittitur from the Court of Appeals, determined defendant’s conviction for identity theft was not against the weight of the evidence. The defendant had tried to purchase items from a store using a credit card and driver’s license with a fictitious name. The First Department had reversed the conviction finding that, because the […]

,

IMPROPER CROSS-EXAMINATION OF THE SOLE DEFENSE WITNESS DEPRIVED DEFENDANT OF A FAIR TRIAL, REVERSED IN THE INTEREST OF JUSTICE (SECOND DEPT).

The Second Department, reversing defendant’s conviction in the interest of justice, determined the prosecutor deprived defendant of a fair trial by improper cross-examination of the sole defense witness: The prosecutor repeatedly injected her own credibility into the trial while cross-examining the complainant’s grandmother, who was the sole witness for the defense other than the defendant, […]

,

ALTHOUGH THE SEARCH OF DEFENDANT’S PERSON INCIDENT TO ARREST WAS PROPER, THE SEARCH INSIDE DEFENDANT’S WALLET WAS NOT, CREDIT CARDS SHOULD HAVE BEEN SUPPRESSED (SECOND DEPT).

The Second Department determined defendant’s motion to suppress credit cards taken from his wallet after he was placed under arrest after a traffic stop should have been granted. The defendant was arrested after a police officer saw what looked like marijuana in a plastic bag on the floor of the car. Defendant was charged with […]

, ,

PROSECUTOR’S IMPROPER REMARKS DESIGNED TO ELICIT THE JURY’S SYMPATHY FOR THE VICTIM DID NOT DEPRIVE DEFENDANT OF A FAIR TRIAL, HOWEVER A NEW TRIAL ON THE MURDER CHARGE IS REQUIRED BECAUSE THE TRIAL JUDGE ERRONEOUSLY DENIED DEFENDANT’S REQUEST TO INSTRUCT THE JURY ON THE LESSER INCLUDED OFFENSE OF MANSLAUGHTER (SECOND DEPT).

The Second Department, reversing defendant’s murder conviction, determined the trial judge should have instructed the jury on the lesser included offense of manslaughter. Although the defendant told the police he went to the victim’s house intending to kill him, there was evidence the gun went off when the victim grabbed the gun. The Second Department […]

,

ALTHOUGH THE NYC ADMINISTRATIVE CODE IMPOSES A DUTY TO KEEP SIDEWALKS SAFE ON ABUTTING PROPERTY OWNERS, IT DOES NOT IMPOSE STRICT LIABILITY, DEFENDANT FAILED TO DEMONSTRATE IT DID NOT CREATE OR HAVE NOTICE OF THE ALLEGED DANGEROUS CONDITION IN THIS SIDEWALK ICE AND SNOW SLIP AND FALL CASE, DEFENDANT’S SUMMARY JUDGMENT MOTION PROPERLY DENIED (SECOND DEPT).

The Second Department determined defendant property owner did not demonstrate that it did not create or have notice of the dangerous condition in this sidewalk snow and ice slip and fall case. The NYC administrative code imposes a duty on abutting property owners to keep sidewalks safe, but it does not impose strict liability: Administrative […]

,

CHILD’S REQUEST FOR AN ADJOURNMENT WHEN MOTHER FAILED TO APPEAR AT AN EQUITABLE ESTOPPEL HEARING IN THIS PATERNITY AND CUSTODY PROCEEDING SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department determined Family Court abused its discretion when it dismissed an equitable estoppel hearing in a paternity and custody proceeding when mother failed to appear and the child requested an adjournment: Despite the fact that the mother had appeared on all prior court dates, and was in the middle of her testimony at […]

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy