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Entries by Bruce Freeman

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DURING SUMMATION THE PROSECUTOR REPEATEDLY ACCUSED DEFENDANT OF LYING, VOUCHED FOR THE CREDIBILITY OF THE COMPLAINANT AND MISSTATED CRITICAL EVIDENCE; NEW TRIAL ORDERED (SECOND DEPT). ​

The Second Department, reversing defendant’s convictions and ordering a new trial, determined the attempted murder and burglary convictions were against the weight of the evidence and prosecutorial misconduct deprived defendant of a fair trial: … [D]uring summation, the prosecutor, inter alia, repeatedly accused the defendant of lying, improperly vouched for the credibility of the complainant, […]

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IN THIS MENTAL HYGIENE LAW ARTICLE 10 TRIAL TO DETERMINE WHETHER THE RESPONDENT, WHO HAD SERVED HIS SENTENCE FOR SEXUAL OFFENSES, REQUIRED CIVIL MANAGEMENT, HEARSAY BASED EXPERT EVIDENCE OFFERED BY THE STATE AND EVIDENCE FROM ONE OF RESPONDENT’S VICTIMS SHOULD NOT HAVE BEEN EXCLUDED; NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing the jury’s finding that respondent did not suffer from a mental abnormality requiring civil management, determined that hearsay based expert evidence offered by the state, and evidence of violence and sexual offenses offered by one of respondent’s victims should not have been excluded: … [T]he State’s expert should have been permitted […]

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EVEN THOUGH THE COOPERATIVE LANDLORD WON IN THE UNDERLYING LITIGATION AGAINST A SHAREHOLDER TENANT, THE LEASE PROVISION REQUIRING THE TENANT TO PAY ATTORNEY’S FEES REGARDLESS OF DEFAULT OR MERIT WAS UNENFORCEABLE AS UNCONSCIONABLE (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined the lease provision which provides for attorney’s fees regardless of default or merit unenforceable as unconscionable: Because the lease provides for attorneys’ fees regardless of default or merit, in a dispute between a residential co-op [The Dakota] and a shareholder tenant [Fletcher] , we find this provision to […]

PLAINTIFF’S WORK, DELIVERING TILES TO THE WORK SITE, WAS COVERED BY LABOR LAW 240(1) AS “NECESSARY AND INCIDENTAL” TO THE PROTECTED CONSTRUCTION-ACTIVITY (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s work, delivering tiles to the construction site, was covered by Labor Law 240(1). Therefore plaintiff was entitled to summary judgment for injury suffered after stepping in the two-foot-deep hole near the loading ramp: Labor Law § 240(1) protects persons engaged “in the erection, demolition, repairing, altering, painting, […]

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IT WAS SUFFICIENTLY ALLEGED THE RELEASE WAS INDUCED BY FRAUD; THE COMPLAINT SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the complaint should not have been dismissed on the basis of the release because it was sufficiently alleged the release was induced by fraud: Plaintiff’s complaint sufficiently alleges that the general release that was the basis for dismissal of the complaint was fraudulently induced based on defendant’s misrepresentations […]

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THE WARRANTLESS SEARCH PROBATION CONDITION WAS NOT REASONABLY RELATED TO THE UNDERLYING OFFENSES; THE APPEAL WAIVER WAS INVALID; EVEN IF THE WAIVER WERE VALID THE IMPROPER PROBATION CONDITION COULD BE CONSIDERED ON APPEAL (FIRST DEPT).

The First Department determined defendant’s waiver of appeal was invalid and the probation condition allowing warrantless searches of defendant’s home, person and vehicle was not reasonable related to the underlying offenses. The court noted that defendant could appeal the probation condition even if the appeal waiver were valid: We find defendant’s appeal waiver invalid and […]

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THE COMPLAINT ALLEGED THE FAILURE TO CLEAR ICE AND SNOW AND CERTAIN BUILDING CODE VIOLATIONS CAUSED HER SLIP AND FALL; THE “STORM IN PROGRESS” RULE ONLY NEGATED THE CAUSE OF ACTION BASED UPON THE FAILURE TO CLEAR THE ICE AND SNOW; THE DEFENDANTS DID NOT DEMONSTRATE THE BUILDING CODE VIOLATIONS WERE INAPPLICABLE; DEFENDANTS’ SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined that, although the “storm in progress” applied to this slip and fall because it was snowing at the time, summary judgment should not have been awarded to defendants. In addition to alleging the negligent failure to clear ice and snow, the complaint alleged the ramp where plaintiff […]

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HERE THE ADMINISTRATOR OF PLAINTIFF’S DECEDENT’S ESTATE BROUGHT A WRONGFUL DEATH ACTION IN SUPREME COURT AND DEFENDANTS MOVED FOR SUMMARY JUDGMENT ARGUING PLANTIFF’S EXCLUSIVE REMEDY WAS WORKERS’ COMPENSATION; RATHER THAN DECIDE THE MOTION, SUPREME COURT SHOULD HAVE REFERRED THE MATTER TO THE WORKERS’ COMPENSATION BOARD WHICH HAS PRIMARY JURISDICTION RE: THE APPLICABILITY OF THE WORKERS’ COMPENSATION LAW (SECOND DEPT).

The Second Department reversed Supreme Court’s denial of defendants’ summary judgment motion in this wrongful death action and referred the matter to the Workers’ Compensation Board. Whether, as defendants argued in their motion, plaintiff’s decedent’s exclusive remedy is Workers’ Compensation must be determined by the Workers’ Compensation Board before a court can consider the issue: […]

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DEFENDANT MADE A DISCOVERY DEMAND FOR “LINE OF DUTY” DOCUMENTS RELEVANT TO THE DEFENSE; THE PEOPLE DID NOT ADDRESS THE DEMAND; ON APPEAL THE PEOPLE ARGUED FOR THE FIRST TIME THAT THERE WERE NO SUCH DOCUMENTS; BY FAILING TO ADDRESS THE DEMAND IN THE MOTION COURT, THE PEOPLE WERE DEEMED TO HAVE CONCEDED THE EXISTENCE OF THE DOCUMENTS; THE CERTIFICATE OF COMPLIANCE WAS THEREFORE ILLUSORY; INDICTMENT DISMISSED (SECOND DEPT).

The Second Department, reversing the conviction and dismissing the indictment, determined the certificate of compliance (COC) with the People’s discovery obligations was illusory and defendant’s motion to dismiss on speedy trial grounds should have been granted: Officer Soto testified before the grand jury that the defendant was sitting in a parked car when the plainclothes […]

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DEFENDANT SHOULD NOT HAVE BEEN ADJUDICATED A SECOND FELONY OFFENDER BASED ON A LOUISIANA CONVICTION FOR AN OFFENSE WHICH IS NOT A FELONY IN NEW YORK (SECOND DEPT). ​

The Second Department, remitting the matter for resentencing, determined the Louisiana conviction for an offense which is not a felony in New York should not have been the basis for adjudicating defendant as a second felony offender: The defendant … contends that his adjudication as a second felony offender was illegal because the predicate Louisiana […]

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