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Entries by Bruce Freeman

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ALLOWING UBER DRIVERS TO PICK UP PASSENGERS VIA SMARTPHONE APPLICATION IS NOT AN UNCONSTITUTIONAL TAKING OF THE PROPERTY OF TAXI CAB AND LIMOUSINE DRIVERS (SECOND DEPT).

The Second Department determined the decision of the New York City Taxi and Limousine Commission (TLC) to allow companies such as Uber to pick up passengers via a smartphone application did not constitute an unconstitutional taking of the property of the petitioners, taxi cab and limousine drivers. The decision is complex and comprehensive, and can […]

MERE USE OF ANOTHER’S PERSONAL IDENTIFYING INFORMATION, LIKE A CREDIT CARD NUMBER, ESTABLISHES A VIOLATION OF NEW YORK’S IDENTITY THEFT STATUTE, THERE IS NO NEED TO PROVE THE DEFENDANT ASSUMED THE VICTIM’S IDENTITY IN SOME ADDITIONAL WAY (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Rivera, over a dissent, determined that New York’s identity theft statute is violated by the use of personal identifying information, like a credit card number, without more. The 1st Department case, which was reversed, had held the mere use of personal identifying information is insufficient, […]

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ALTHOUGH THE APPELLATE COURT TOOK JUDICIAL NOTICE OF A REGULATION ALLOWING CITY SANITATION TRUCKS TO DOUBLE PARK RAISED FOR THE FIRST TIME ON APPEAL, THERE WERE DISPUTED FACTS ABOUT WHETHER THE DOUBLE PARKED SANITATION TRUCK COULD HAVE BEEN PULLED TO THE CURB, THE CITY’S MOTION FOR SUMMARY JUDGMENT IN THIS REAR-END COLLISION CASE SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the defendant city was not entitled to summary judgment based upon the van in which the plaintiff was a passenger striking the rear of a sanitation truck that was double parked. On appeal the city cited a regulation which allows sanitation trucks to double park. The existence of the […]

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INTRA- OR INTER- AGENCY EXEMPTION TO DISCLOSURE UNDER THE FREEDOM OF INFORMATION LAW (FOIL) DID NOT EXTEND TO COMMUNICATIONS BETWEEN MAYOR DE BLASIO’S OFFICE AND A CONSULTANT RETAINED BY A PRIVATE ORGANIZATION (AS OPPOSED TO A CONSULTANT HIRED BY A GOVERNMENTAL AGENCY), PREVAILING PARTIES ENTITLED TO ATTORNEY’S FEES (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Singh, determined that the intra- or inter-agency exemption from the Freedom of Information Law (FOIL) could not be stretched to include communications between Mayor de Blasio’s office and an outside consultant retained by a private organization (Campaign for One New York or CONY), as opposed to […]

RECORD OF DEFENDANT’S ACQUITTAL SHOULD NOT HAVE BEEN UNSEALED FOR USE IN A SENTENCING PROCEEDING, RECORD SHOULD BE RESEALED BUT ERROR WAS HARMLESS (FIRST DEPT).

The First Department, over a two-judge concurrence, determined the record of defendant’s acquittal should not have been unsealed for use by the sentencing court. The record should be resealed but the error did not require resentencing: … [W]hile we agree with defendant that the unsealing was improper, we reject [defendant’s] request for resentencing. In People v Patterson (78 […]

DEPARTMENT OF ENVIRONMENTAL CONSERVATION (DEC) HAS THE POWER TO UNILATERALLY UNDERTAKE THE REMEDIATION OF A HAZARDOUS WASTE SITE, WITHOUT THE PARTICIPATION OF THE CORPORATION WHICH RELEASED THE WASTE (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Wilson, reversing the Appellate Division, determined the Department of Environmental Conservation (DEC) had the power to unilaterally undertake the remediation of a hazardous waste site, without the participation of the corporation (FMC) which released the waste. The fact that FMC had been operating under an […]

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SUPPRESSION OF ALL EVIDENCE IN THIS TRAFFIC STOP CASE AFFIRMED, EXTENSIVE DISSENT QUESTIONED CONTINUED VIABILITY OF THE DEBOUR STREET STOP ANALYSIS, ORAL SUPPRESSION RULING APPEALABLE (CT APP).

The Court of Appeals affirmed the Appellate Division’s determination that suppression of all evidence was required in this traffic stop case. Judge Garcia wrote an extensive dissenting opinion questioning the continued viability of the DeBour criteria for the analysis of encounters with the police. The dissenting opinion is well-worth reading but is not summarized here. The majority […]

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APPEAL FROM LOCAL CRIMINAL COURT NOT PROPERLY TAKEN, THE PROCEEDINGS WERE NOT TRANSCRIBED AND NO AFFIDAVIT OF ERRORS WAS SERVED OR FILED (CT APP).

The Court of Appeals reversed the Appellate Term, noting that the appeal from a local court was not properly taken. The proceedings were not transcribed by a court stenographer and no affidavit of errors had been filed or served: On review of submissions pursuant to section 500.11 of the Rules, order reversed, and case remitted […]

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DEFENDANT PROPERTY OWNER WAS THE ALTER EGO OF PLAINTIFF’S EMPLOYER, PLAINTIFF’S ONLY REMEDY FOR INJURY FROM A FALL WAS UNDER THE WORKERS’ COMPENSATION LAW (FOURTH DEPT).

The Fourth Department determined defendant property owner was the alto ego of plaintiff’s employer (Fox Run) and therefore plaintiff’s only remedy for his on the job injury was under the Workers’ Compensation Law. Plaintiff worked on a farm and was injured when he fell from a hayloft: … [W]e conclude that defendant established as a […]

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PRIVATE NUISANCE CAUSE OF ACTION BASED UPON LIGHTS AND NOISE FROM A STADIUM PROPERLY SURVIVED SUMMARY JUDGMENT (FOURTH DEPT).

The Fourth Department determined the private nuisance cause of action properly survived summary judgment: The elements of a cause of action for private nuisance are “(1) an interference substantial in nature, (2) intentional in origin, (3) unreasonable in character, (4) with a person’s property right to use and enjoy land, (5) caused by another’s conduct” […]

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