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Entries by Bruce Freeman

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NEGLECT ALLEGATION AGAINST NURSING HOME FOR SYSTEMIC FAILURE PROPERLY FOUND TO BE SUBSTANTIATED, EVEN THOUGH THE RELATED ALLEGATIONS AGAINST TWO EMPLOYEES WERE DEEMED TO BE UNSUBSTANTIATED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Garcia, over a dissent, reversing the Appellate Division, determined that the Justice Center for the Protection of People with Special Needs had the statutory authority to find that a neglect allegation against a nursing home was substantiated, even though the neglect allegations against two employees […]

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TAXI LICENSES ARE NOT PROPERTY WITHIN THE MEANING OF THE GRAND LARCENY STATUTE, ALTHOUGH THE LEGAL INSUFFICIENCY ARGUMENT WAS NOT PRESERVED, DEFENDANT’S GRAND LARCENY CONVICTION WAS VACATED IN THE INTEREST OF JUSTICE (SECOND DEPT).

The Second Department vacated defendant’s grand larceny conviction in the interest of justice because the licenses from the NYC Taxi and Limousine Commission (TLC) do not constitute “property” within the meaning of the grand larceny statute: The defendant’s conviction of grand larceny in the third degree (Penal Law § 155.35[1]) was based on the alleged […]

FAILURE TO PROVIDE NOTICE TO COUNSEL OF THE CONTENTS OF JURY NOTES AND FAILURE TO MAKE A RECORD DEMONSTRATING MEANINGFUL NOTICE REQUIRED REVERSAL AND A NEW TRIAL (SECOND DEPT).

The Second Department reversed defendant’s convictions and ordered a new trial because the trial judge failed to comply with the strict requirements surrounding providing notice to counsel of the contents of notes sent out by the jury: Here, on the morning of the first day of deliberations, the Supreme Court received three notes from the jury […]

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COURT ATTORNEY REFEREE WAS NOT AUTHORIZED TO DETERMINE A CONTESTED FAMILY OFFENSE PETITION OR CUSTODY AND VISITATION ISSUES (SECOND DEPT).

The Second Department determined the court attorney referee was not authorized to determine a contested family offense petition or custody and visitation issues: A referee derives authority from an order of reference by the court (see CPLR 4311, 4317…). Here, as correctly asserted by the mother, the order of reference did not authorize the Court Attorney […]

PLAINTIFF WALKED INTO THE REAR OF A TRACTOR TRAILER WHICH WAS MAKING A RIGHT TURN, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ (truck owner’s and driver’s) motion for summary judgment in this pedestrian traffic accident case should have been granted. Plaintiff was injured by the rear portion of a tractor trailer which had completed 85% of a right turn: … [T]he plaintiff allegedly was walking on a sidewalk … […]

TOWN PROPERLY DISSOLVED THE EXISTING FIRE PROTECTION DISTRICT AND CREATED TWO NEW FIRE PROTECTION DISTRICTS (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Rivera, over a dissenting opinion, determined the Town of Champion had properly dissolved the existing fire protection district (FPD) and replaced it with two new FPD’s. The dissent argued the existing FPD had not been properly dissolved, but rather was merely divided: … [P]etitioners claim […]

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LOCAL LAW REQUIRING A PERMIT FOR THE TRANSPORT OF WASTE WITHIN THE COUNTY WAS NOT PREEMPTED BY STATE LAW (WHICH ALSO REQUIRED A PERMIT) AND DID NOT VIOLATE THE COMMERCE CLAUSE, PETITIONER PROPERLY FINED FOR FAILURE TO OBTAIN A COUNTY PERMIT (SECOND DEPT).

The Second Department determined that the Westchester County Solid Waste Commission properly found that petitioner had not obtained a permit to allow the transport of waste within Westchester County and imposed a $15,000 fine. Petitioner had obtained a permit from the state Department of Environmental Conservation (DEC) and argued that the Westchester County law was […]

WHERE THERE IS NO PREJUDICE TO A DEFENDANT, PLAINTIFF’S MOTION FOR A VOLUNTARY DISCONTINUANCE WITHOUT PREJUDICE SHOULD BE GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that plaintiff’s motion for a voluntary discontinuance without prejudice should have been granted: CPLR 3217(b) permits a voluntary discontinuance of a claim by court order “upon terms and conditions, as the court deems proper” (CPLR 3217[b]…). In general, absent a showing of special circumstances, including prejudice to a […]

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UTILITY BOX RECESSED IN CITY SIDEWALK WAS OPEN AND OBVIOUS AND NOT INHERENTLY DANGEROUS, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE PROPERLY GRANTED (SECOND DEPT).

The Second Department determined the utility box recessed into a city sidewalk was open and obvious and was not inherently dangerous. Defendants were therefore entitled to summary judgment in this slip and fall case: There is ” no duty to protect against an open and obvious condition provided that, as a matter of law, the […]

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