You are here: / Bruce Freeman

Entries by Bruce Freeman

DEFENDANT WAS NOT PRESENT IN THE COURTROOM WHEN HIS SENTENCE OF INCARCERATION WAS CHANGED, MATTER REMITTED FOR RESENTENCING (FOURTH DEPT).

The Fourth Department, remitting the DWI case for resentencing, determined defendant’s sentence should not have been changed after defendant left the courtroom. The court further found that the five-year conditional discharge to monitor the ignition interlock device exceeded the maximum allowed term (three years): “[D]efendants have a fundamental right to be present at sentencing’ in […]

,

ACQUITTAL ON SOME COUNTS DID NOT RENDER PROOF OF OTHER COUNTS LEGALLY INSUFFICIENT, SERVICE ELEMENT OF CRIMINAL CONTEMPT PROVEN BY DEFENDANT’S RECEIPT OF THE ORDER IN COURT (FOURTH DEPT).

The Fourth Department, in a full-fledged opinion by Justice NeMoyer, rejected defendant’s arguments that (1) the People failed to prove the “service of the order” element of criminal contempt, and (2) his acquittal on some counts of the indictment rendered the evidence legally insufficient for the counts on which he was convicted. … [D]efendant argues […]

,

CLASS ACTION CERTIFICATION FOR EMPLOYEES ALLEGING DEFENDANT’S FAILURE TO PAY THE PREVAILING WAGE SHOULD NOT HAVE BEEN DENIED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined class certification under CPLR 901 for employees alleging defendant did not pay prevailing wages required by article I, § 17 of the New York Constitution and section 220 (3) of the Labor Law: … [T]he court erred in determining that plaintiffs failed to establish the first and second […]

A CLAIMANT MAY NOT RECEIVE BOTH A SCHEDULE LOSS OF USE AWARD AND A NONSCHEDULE PERMANENT PARTIAL DISABILITY AWARD FOR INJURIES FROM THE SAME ACCIDENT, BUT BOTH INJURY CLASSIFICATIONS CAN BE CONSIDERED IN DETERMINING LOSS OF WAGE-EARNING CAPACITY (THIRD DEPT).

The Third Department determined claimant cannot receive both a schedule loss of use (SLU) award and a nonschedule permanent partial disability award for injuries stemming from the same accident, but both classifications of injury can be considered in determining loss of wage-earning capacity: The amount of an SLU award is based upon the body member […]

DIFFERENCE BETWEEN A SCHEDULE LOSS OF USE AND NONSCHEDULE PERMANENT PARTIAL DISABILITY EXPLAINED (THIRD DEPT).

The Third Department explained the difference between a schedule loss of use and a nonschedule permanent partial disability: Workers’ Compensation Law § 15 (3) contains a schedule of awards for a permanent partial disability resulting from a loss of specific body parts or functions, such as vision and hearing (see Workers’ Compensation Law § 15 [3] […]

RECENT AMENDMENT TO THE WORKERS’ COMPENSATION LAW APPLIES RETROACTIVELY, CLAIMANT WITH A PERMANENT PARTIAL DISABILITY WHO HAS INVOLUNTARILY WITHDRAWN FROM THE LABOR MARKET NEED NOT DEMONSTRATE A CONTINUED ATTACHMENT TO THE LABOR MARKET (THIRD DEPT).

The Third Department determined a recent amendment to the Workers’ Compensation Law applied retroactively and was properly applied to claimant’s case. The amendment provides that a worker who has involuntarily withdrawn from the labor market with a permanent partial disability need not demonstrate a continued attachment to the labor market: … [T]he Board panel … […]

, ,

EDUCATION LAW AND PUBLIC HEALTH LAW DID NOT PROHIBIT RELEASE OF THE IDENTITIES OF NONPARTY PARTICIPANTS IN A QUALITY ASSURANCE REVIEW INVOLVING PLAINTIFF DOCTOR (FIRST DEPT).

The First Department determined the Education Law and Public Health Law did not prohibit the release of the identities of persons who participated in a quality assurance review involving plaintiff doctor: Plaintiffs’ claims in this suit are based on [Peconic Bay Medical Center’s] alleged misrepresentations about the existence of an investigation and the filing of an […]

,

PLAINTIFF WAS ENGAGED IN ALTERATION WHEN HE FELL FROM AN A FRAME LADDER AND WAS ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION, RECOVERY NOT PRECLUDED ON THE GROUND THAT PLAINTIFF WAS THE ONLY WITNESS OR ON THE GROUND OF COMPARATIVE NEGLIGENCE (FIRST DEPT).

The First Department determined plaintiff was entitled to summary judgment on his Labor Law 240 (1) action stemming from a fall from an A frame ladder. Plaintiff was engaged in “alteration” within the meaning of the statute. The fact that plaintiff was the sole witness to the action did not preclude summary judgment. The fact […]

, , ,

ALTHOUGH THE INSURER COULD DISCLAIM COVERAGE FOR ANY INJURIES CAUSED BY THE INSURED ASSAILANT’S INTENTIONAL CRIMINAL ACTS UNDER THE DOCTRINE OF COLLATERAL ESTOPPEL, THE INSURER COULD NOT DISCLAIM COVERAGE FOR ANY SUBSEQUENT INJURIES THAT MAY HAVE BEEN CAUSED BY THE ASSAILANT’S NEGLIGENCE (THIRD DEPT).

The Third Department determined plaintiff insurer could not completely disclaim coverage of injuries suffered by the defendant at the insured home (owned by the McCabe’s). McCabe was convicted of assaulting and strangling the defendant. Defendant alleges that after McCabe assaulted her she fell over a tripping hazard in the McCabe home and was injured in […]

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