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Entries by Bruce Freeman

QUESTION OF FACT WHETHER SAFETY DEVICES FOR LIFTING HEAVY MOTOR WERE AVAILABLE, PLAINTIFFS’ MOTION OF SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department determined there was a question of fact whether safety devices were available precluded granting plaintiffs’ motion for summary judgment on the Labor Law 240 (1) cause of action. Plaintiff was injured lifting a heavy motor onto a scissor lift. Defendant’s foreman testified he had never manually lifted a motor onto a scissors […]

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BAD FAITH DISCLAIMER ACTION BROUGHT AFTER INJURED PLAINTIFFS WERE ASSIGNED THE INSURED’S RIGHTS UNDER THE POLICY NOT BARRED BY RES JUDICATA, PLAINTIFFS DID NOT HAVE STANDING TO BRING THE BAD FAITH ACTION UNTIL THE RIGHTS WERE ASSIGNED (FOURTH DEPT). ​

The Fourth Department determined plaintiffs’ bad faith action against the insurer was not barred by res judicata. Plaintiffs successfully sued the insured in this accidental shooting case and recovered the policy limits. Plaintiffs then were assigned the insured’s rights against the insurer and sued for the insurer for disclaiming coverage in bad faith. Because plaintiffs […]

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FOURTEEN YEAR OLD CHILD HAD THE STATUTORY RIGHT TO WAIVE HIS PRESENCE AT THE PERMANENCY HEARING AND SHOULD NOT HAVE BEEN ORDERED TO APPEAR, APPEAL HEARD AS AN EXCEPTION TO THE MOOTNESS DOCTRINE (FOURTH DEPT).

The Fourth Department, reversing Family Court, in a full-fledged opinion by Justice Troutman, determined the 14-year-old child had the statutory right to waive his presence at the permanency hearing and the judge should not have ordered his presence. Although the hearing had been held, the appeal was heard under as an exception to the mootness […]

FAMILY COURT SHOULD HAVE SET A SPECIFIC AND DEFINITIVE VISITATION SCHEDULE, MATTER REMITTED (FOURTH DEPT).

The Fourth Department, modifying Family Court, determined Family Court should have set a specific and definitive visitation schedule: Respondent mother appeals from an amended order that, inter alia, granted petitioner father’s petition to modify a prior custody order by awarding him primary physical custody of their daughter. We agree with the mother that Family Court […]

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DEFENDANT’S PRE-MIRANDA STATEMENT SHOULD HAVE BEEN SUPPRESSED, DEFENDANT DEMONSTRATED HE WAS NOT COMPETENT TO TESTIFY AT THE GRAND JURY, HIS GRAND JURY TESTIMONY SHOULD NOT HAVE BEEN ADMITTED IN EVIDENCE (FOURTH DEPT). ​

The Fourth Department, reversing defendant’s conviction and ordering a new trial, determined the portion of defendant’s videotaped statement that was allowed in evidence should have been suppressed, and the jury should not have heard defendant’s grand jury testimony because he was not competent to testify at the time: … [T]he court erred in suppressing only […]

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EVIDENCE OF CONSTRUCTIVE POSSESSION OF DRUGS IN AN APARTMENT LEGALLY INSUFFICIENT, CONVICTION REVERSED (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction for possession of a controlled substance, determined the circumstantial evidence of constructive possession of the drugs found in an apartment was legally insufficient:​ Although defendant was present in the apartment at the time when the police executed the search warrant, “no evidence was presented to establish that defendant was […]

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DEFENDANT ENTITLED TO A HEARING ON HIS INEFFECTIVE ASSISTANCE ALLEGATIONS IN HIS MOTIONS TO VACATE HIS CONVICTIONS, EVEN THOSE ALLEGATIONS THAT COULD HAVE BEEN RAISED ON APPEAL (FOURTH DEPT).

The Fourth Department, reversing County Court, determined defendant was entitled to a hearing on his motions to vacate his convictions on ineffective assistance grounds. The Fourth Department noted that, where some of the allegations of ineffective assistance are outside the record, a hearing on a motion to vacate can encompass all allegations of ineffective assistance, […]

DEFENDANT WAS NOT IN CUSTODY WHEN HIS STATEMENTS WERE MADE, SUPPRESSION MOTION SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant’s motion to suppress his statements should not have been granted. The People demonstrated defendant was not in custody when the statements were made: “In determining whether a defendant was in custody for Miranda purposes, [t]he test is not what the defendant thought, but rather what a reasonable [person], innocent of […]

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PLAINTIFF DID NOT DEMONSTRATE THE CONTINUITY OF OWNERSHIP ELEMENT OF THE DE FACTO MERGER DOCTRINE SUCH THAT THE ASSETS OF ONE DEFENDANT SHOULD BE USED TO SATISFY THE DEBT OF ANOTHER (FOURTH DEPT).

The Fourth Department, modifying Supreme Court, determined plaintiff did not show that there was a continuity of ownership such that, pursuant to the de facto merger doctrine, the assets of defendant NYP Ag should be used to satisfy a judgment against NYP Management: “Traditionally, courts have considered several factors in determining whether a de facto […]

STRIKING THE ANSWER WAS TOO SEVERE A SANCTION FOR A DISCOVERY VIOLATION, THERE WAS NO SPOLIATION OF EVIDENCE, RATHER THERE WAS A DELAY IN PRODUCING THE EVIDENCE (FOURTH DEPT).

The Fourth Department determined a discovery violation had occurred, but it did not involve spoliation of evidence and striking defendant’s (the Clinic’s) answer was too severe a sanction. This is a medical malpractice action alleging a failure to diagnose breast cancer. The plaintiff sought reports generated by software (CAD) used to detect breast cancer: … […]

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