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Entries by Bruce Freeman

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DEFENDANT COUNTY CORONER TOOK PLAINTIFF’S SON’S BRAIN MATTER FOR USE IN TRAINING CADAVER DOGS AND FATHER SUED, QUESTION OF FACT WHETHER COUNTY OBLIGATED UNDER THE PUBLIC OFFICERS LAW TO DEFEND AND INDEMNIFY THE CORONER (I.E., WAS THE CORONER ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT?) (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant’s motion for summary judgment on his cross claim against the county (seeking a determination that the county is obligated to defend and indemnify him) should not have been granted. Plaintiff’s son was killed in a car accident. Defendant, who was then a county coroner, without permission, took […]

WHILE WORKING ON A SIGN AT EYE LEVEL PLAINTIFF SLIPPED OFF A LANDSCAPING ROCK WHICH HE DID NOT NEED TO STAND ON TO DO THE WORK, PLAINTIFF’S LABOR LAW 240 (1) AND 241 (6) CAUSES OF ACTION PROPERLY DISMISSED (FOURTH DEPT).

The Fourth Department determined plaintiff’s Labor Law 240 (1) and 241 (6) causes of action were properly dismissed. Plaintiff slipped off a landscaping rock while working on a business sign. Plaintiff did not need to stand on the rock to do the work, which involved removing letters from the sign. The Labor Law 241 (6) […]

INJURY FROM A SAFETY BAR IN A BOBCAT WHICH FELL AFTER PLAINTIFF RAISED IT TO STEP OUT OF THE MACHINE DID NOT RESULT FROM A SIGNIFICANT ELEVATION DIFFERENTIAL WITHIN THE MEANING OF LABOR LAW 240 (1), LABOR LAW 241 (6) CAUSES OF ACTION WERE VIABLE HOWEVER (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined defendant’s motion for summary judgment on plaintiff’s Labor Law 240 (1) cause of action should have been granted, but the Labor Law 241 (6) causes of action were viable. Plaintiff was injured when a safety bar in a Bobcat fell and struck him. The safety bar lowers […]

ALTHOUGH THE MONTHLY MORTGAGE PAYMENTS STOPPED IN 2008, THE DEBT WAS NEVER ACCELERATED UNTIL THE INSTANT FORECLOSURE ACTION WAS BROUGHT IN 2015, THE ACTION SHOULD NOT HAVE BEEN DISMISSED AS TIME-BARRED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the foreclosure action was not time barred. The mortgage payments stopped in 2008. But the debt was never accelerated until the foreclosure action was commenced in 2015: Where, as here, a loan secured by a mortgage is payable in installments, separate causes of action accrue for each unpaid […]

FAMILY COURT DID NOT FOLLOW THE PROCEDURE SET OUT IN THE UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT (UCCJEA) BEFORE DETERMINING IT DID NOT HAVE JURISDICTION OVER FATHER’S CUSTODY PROCEEDING, MOTHER HAD BROUGHT A CUSTODY PROCEEDING IN PENNSYLVANIA, MATTER REMITTED (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined Family Court did not follow the procedures required by the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) before determining it did not have jurisdiction over the custody proceeding. Family Court had jurisdiction over father’s custody proceeding when it was commenced, and Pennsylvania had jurisdiction over the wife’s […]

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PLAINTIFF’S MOTION TO AMEND HER COMPLAINT BY ADDING A BATTERY CAUSE OF ACTION AGAINST A TEACHER AND A RESPONDEAT SUPERIOR CAUSE OF ACTION AGAINST THE SCHOOL SHOULD HAVE BEEN GRANTED, CRITERIA EXPLAINED, RELATION-BACK DOCTRINE APPLIED TO THE NEW CAUSES OF ACTION (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined plaintiff’s motion to amend her complaint to add a battery cause of action against a teacher and a respondeat superior cause of action against the school should have been granted. Plaintiff alleged the defendant teacher struck her on the back of her head. The complaint alleged a negligence […]

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DEFENDANT’S MOTION TO VACATE HIS CONVICTION BASED UPON INEFFECTIVE ASSISTANCE AND ACTUAL INNOCENCE SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING, DEFENDANT PRESENTED EVIDENCE DEFENSE COUNSEL NEVER SUBPOENAED A WITNESS (FOURTH DEPT).

The Fourth Department determined defendant’s motion to vacate his conviction based upon ineffective assistance and actual innocence should not have been denied without a hearing: … [T]he court erred in denying without a hearing that part of his motion based upon ineffective assistance of counsel. Defendant’s specific claim is that defense counsel failed to secure […]

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DEFENDANT CONVICTED OF ASSAULT FIRST DEGREE FOR ALLOWING HIS DOG TO ATTACK THE VICTIM, EVIDENCE OF INTENT TO CAUSE SERIOUS INJURY WAS LEGALLY SUFFICIENT, MOTION FOR TRIAL ORDER OF DISMISSAL AT THE CLOSE OF THE EVIDENCE PRESERVED THE ISSUE BY REFERRING TO THE MOTION MADE AT THE CLOSE OF THE PEOPLE’S CASE (FOURTH DEPT).

The Fourth Department determined the evidence was legally sufficient to support the assault first conviction stemming from defendant’s allowing his dog to attack the victim. The court noted that the motion for a trial order of dismissal at the close of the People’s case was adequate to preserve the challenge to the legal sufficiency of […]

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MOTION TO SET ASIDE THE VERDICT AS NOT SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE AND AS AGAINST THE WEIGHT OF THE EVIDENCE SHOULD HAVE BEEN GRANTED, THE EVIDENCE DID NOT ALLOW THE CONCLUSION THAT THE WILL, WRITTEN BY DECEDENT’S CARETAKER THREE DAYS BEFORE DEATH, WAS DULY EXECUTED (THIRD DEPT).

The Third Department determined the jury verdict finding the will offered by petitioner had been duly executed was not supported by legally sufficient evidence and was against the weight of the evidence. The will was handwritten by petitioner, not decedent, three days before his death. The decedent, who was terminally ill, had moved to petitioner’s […]

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