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Entries by Bruce Freeman

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HARMLESS ERROR TO ADMIT EVIDENCE OF PRIOR CRIMES, HARMLESS ERROR TO PROHIBIT CROSS-EXAMINATION OF ARRESTING OFFICER ABOUT A SETTLED FEDERAL CIVIL RIGHTS SUIT, STATEMENTS MADE BY DEFENDANT NOT ADMISSIBLE AS PRIOR CONSISTENT STATEMENTS OR AS EVIDENCE OF STATE OF MIND, EVIDENTIARY ARGUMENT NOT RAISED BELOW OR ON APPEAL CANNOT BE CONSIDERED (SECOND DEPT).

The Second Department, over a dissent, affirmed defendant’s conviction for possession of a weapon. In a comprehensive decision too detailed to fairly summarize here the court ruled: the stop of the vehicle in which defendant was a passenger was justified by traffic infractions; the officer’s noticing pictures of firearms on defendant’s phone and the butt […]

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TENANT DID NOT VIOLATE THE COURT ORDER DIRECTING HIM TO PAY RENT DUE UNDER THE LEASE TO THE LANDLORD’S CREDITOR, TENANT STOPPED PAYING THE RENT TO THE CREDITOR ONLY AFTER THE LANDLORD TERMINATED THE LEASE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined petitioner did not demonstrate the tenant, Cohen, violated a court order directing Cohen to pay his rent directly to the petitioner, who had a judgment against Cohen’s landlord. The court order required that Cohen pay any rent due under the lease to petitioner (CPLR 5225). However, the landlord […]

ALTHOUGH PLAINTIFF INDICATED SHE DID NOT KNOW THE CAUSE OF HER FALL IN HER DEPOSITION, IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHE RAISED A QUESTION OF FACT ABOUT WHETHER THE FLOOR WAS WET FROM TRACKED IN SNOW AND DEFENDANT DID NOT PRESENT ANY EVIDENCE ON THE ISSUE OF NOTICE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that defendant’s motion for summary judgment should not have been granted in this slip and fall case. The defendant demonstrated that plaintiff did not know the cause of her fall. In her opposing affidavit plaintiff alleged she felt the back of her coat when she got up and […]

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COUNTY DID NOT DEMONSTRATE THAT IT DID NOT CREATE THE DANGEROUS CONDITION, I.E. SNOW PILED AT AN INTERSECTION, PLAINTIFF ALLEGED THE INTERSECTION COLLISION WAS CAUSED BY THE INABILITY TO SEE BECAUSE OF THE PILE OF SNOW, COUNTY’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT).

The Second Department determined the county was not entitled to summary judgment in this intersection collision case. Plaintiff alleged her field of vision was blocked by snow piled at the intersection. The county demonstrated it did not have written notice of the condition, but did not demonstrate it did not create the condition: Where ” […]

PLAINTIFF PROPERLY GRANTED SUMMARY JUDGMENT IN THIS LABOR LAW 240 (1) ACTION STEMMING FROM A FALL FROM A LADDER, DEFENDANT WAS APPARENTLY LIABLE AS AN AGENT OF THE OWNER WITH AUTHORITY OVER SAFETY MEASURES (SECOND DEPT).

The Second Department determined plaintiff was entitled to summary judgment on his Labor Law 240 (1) cause of action stemming from a fall from a ladder which moved for no apparent reason. The court determined that the defendant, Arrow, which had contracted with plaintiff’s employer, was liable as an agent of the owner or general […]

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MOTION FOR A NEW TRIAL UNLESS PLAINTIFF AGREED TO A REDUCTION IN DAMAGES FOR PRE-IMPACT TERROR AND CONSCIOUS PAIN AND SUFFERING IN THIS TRAFFIC-ACCIDENT WRONGFUL DEATH CASE PROPERLY GRANTED (SECOND DEPT).

The Second Department determined Supreme Court properly granted defendants’ motion for a new trial (CPLR 4404) in this car-bus-accident wrongful death case if plaintiff did not agree to a reduction of damages for pre-impact terror and conscious pain and suffering: Here, the evidence at trial established that the decedent made eye contact with the defendant […]

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HEARSAY NOT DEMONSTRATED TO BE RELIABLE, DISCIPLINARY DETERMINATION ANNULLED AND EXPUNGED (THIRD DEP

The Third Department, annulling the disciplinary determination and expunging it, determined the hearsay upon which the determination was based was not demonstrated to be sufficiently reliable: “While hearsay evidence in the form of confidential information may provide substantial evidence to support a determination of guilt, the information must be sufficiently detailed to allow the Hearing […]

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MEDICAL JOURNAL KEPT BY PLAINTIFF’S DECEDENT AFTER SHE WAS INJURED AT THE DIRECTION OF HER ATTORNEY PROTECTED BY ATTORNEY-CLIENT PRIVILEGE, MEDICATION LOG IS NOT PROTECTED (THIRD DEPT).

The Third Department determined that a medical journal kept by plaintiff’s decedent after an injury at the direction of her attorney was protected by attorney-client privilege, where as a record of her medications were not: Upon examination of the notes turned over to Supreme Court for an in camera review, we conclude that they are […]

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DETERMINATION PETITIONER VIOLATED THE COLLEGE’S SEXUAL ASSAULT POLICY AND THE ADMINISTRATIVE PROCEDURE USED BY THE COLLEGE DEEMED PROPER (THIRD DEPT).

The Third Department determined the petitioner was properly disciplined for violation of a college’s sexual assault policy and the procedure followed by the college was proper: “Where, as here, no hearing is required by law, a court reviewing a private university’s disciplinary determination must determine ‘whether the university substantially adhered to its own published rules […]

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