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Entries by Bruce Freeman

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THE TREE WELL IN THE SIDEWALK WHERE PLAINTIFF TRIPPED AND FELL WAS THE RESPONSIBILTY OF THE CITY, NOT DEFENDANT ABUTTING PROPERTY OWNER (FIRST DEPT). ​

The First Department, reversing Supreme Court in this slip and fall case, determined that maintenance of the tree well within the sidewalk where plaintiff fell was the responsibility of the city, not the defendant property owner: Defendant established its prima facie entitlement to summary judgment by submitting plaintiff’s pleadings and deposition testimony, along with photographic […]

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AT SENTENCING THE PROSECUTOR REFERENCED EXCULPATORY STATEMENTS ATTRIBUTED TO DEFENDANT IN THE PRESENTENCE REPORT BUT, WHEN GIVEN THE OPPORTUNITY, NEITHER DEFENDANT NOR DEFENSE COUNSEL ADDRESSED THE ISSUE; NOTWITHSTANDING THE SILENCE OF THE DEFENSE THE JUDGE SHOULD HAVE INQUIRED INTO WHETHER THE GUILTY PLEA WAS KNOWING AND VOLUNTARY; THERE WAS NO NEED TO PRESERVE THE ERROR FOR APPEAL (FIRST DEPT).

The First Department, vacating defendant’s guilty plea, in a full-fledged opinion by Judge Singh, determined the prosecutor’s mention of defendant’s (Dupree’s) exculpatory statements in the presentence report (PSR) required the judge to conduct an inquiry to ensure the guilty plea was knowing and voluntary, despite the defendant’s and defense counsel’s failure to address the statements […]

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THE MAJORITY AFFIRMED WITHOUT DISCUSSION; JUDGE RIVERA IN A DISSENTING OPINION JOINED BY JUDGE WILSON WOULD HAVE REVERSED ON INEFFECTIVE ASSISTANCE GROUNDS (CT APP). ​

The Court of Appeals affirmed defendant’s burglary, assault, criminal contempt and resisting arrest convictions without discussion. Judges Rivera and Wilson would have reversed on ineffective assistance grounds: From the dissent: Counsel’s performance here was deficient in several respects and no reasonable defense strategy explains those failings. Before trial, counsel’s boilerplate motion referenced matters not at […]

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PUNITIVE DAMAGES IN A DECEPTIVE BUSINESS PRACTICES ACTION PURSUANT TO GENERAL BUSINESS LAW 349 (H) ARE LIMITED TO THREE TIMES ACTUAL DAMAGES (CT APP).

The Court of Appeals, affirming the Appellate Division, in a full-fledged opinion by Judge Troutman, over a two-judge concurring opinion, determined the terms of the life insurance policy, which was terminated by the defendant insurer, were unambiguous and enforceable. The General Business Law section 349 (h) cause of action alleging deceptive business practices survived but […]

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DETERMINING SCHEDULE LOSS OF USE BY COMPARING THE RANGE OF MOTION OF LIMBS ON THE INJURED SIDE TO THE RANGE OF MOTION OF CORRESPONDING LIMBS ON THE OTHER SIDE MAY NOT BE APPROPRIATE IF THE OTHER SIDE HAS ALSO SUFFERED INJURIES, WHETHER PERMANENT OR TEMPORARY, IN THE PAST (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined comparison of the ranges of motion of the injured limbs to the corresponding limbs on the other side of the body (contralateral members), which resulted in 0 % loss of schedule use (SLU), was a flawed approach. The Board concluded that such a comparison was not […]

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PLAINTIFF WAS NOT IN AN AREA IN WHICH FALLING OBJECTS COULD BE ANTICIPATED, SO THE LABOR LAW 240(1) AND 241(6) CAUSES OF ACTION SHOULD HAVE BEEN DISMISSED; PLAINTIFF WAS STRUCK BY A BOARD INTENTIONALLY THROWN INTO THE EXCAVATED AREA WHERE HE WAS WORKING; THE LABOR LAW 200 AND NEGLIGENCE CAUSES OF ACTION PROPERLY SURVIVED (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, determined plaintiff’s Labor Law 240(1) and 241(6) causes of action should have been dismissed. Plaintiff was in an excavated area four or five feet below ground level when a worker at ground level threw a board into the excavated area which struck plaintiff. Apparently throwing boards into the […]

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THE STANDARD FOR AN INTERMEDIATE APPELLATE COURT’S REVIEW OF A SENTENCE CLARIFIED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Troutman, over a three-judge dissenting opinion, remitted the matter to the Appellate Division for a determination whether a sentence reduction is warranted using the correct standard. The defendant need not demonstrate extraordinary circumstances or an abuse of discretion by the sentencing court to warrant a […]

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THE JUSTICE FOR INJURED WORKERS ACT (JIWA), WHICH TOOK EFFECT DECEMBER 30, 2022, AMENDED THE WORKERS’ COMPENSATION LAW SUCH THAT A WORKERS’ COMPENSATION BOARD RULING CANNOT BE GIVEN COLLATERAL ESTOPPEL EFFECT IN A SUBSEQUENT PERSONAL INJURY ACTION; THE FIRST DEPARTMENT HELD THE JIWA APPLIES RETROACTIVELY (FIRST DEPT).

The First Department, reversing Supreme Court, in a full-fledged opinion by Justice Moulton, determined the amendment to the Workers’ Compensation Law (the Justice for Injured Workers Act [JIWA]), which precludes giving a Workers’ Compensation Board’s ruling collateral estoppel effect in a subsequent personal injury action, applies retroactively. Therefore the defendants’ motion for leave to amend […]

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PLAINTIFF VIOLATED THE VEHICLE AND TRAFFIC LAW BY MAKING A LEFT TURN DIRECTLY INTO DEFENDANT’S PATH OF TRAVEL WHEN DEFENDANT HAD A GREEN LIGHT; PLAINTIFF’S TESTIMONY THAT DEFENDANT WAS SPEEDING WAS NOT ENOUGH TO RAISE A QUESTION OF FACT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant driver was entitled to summary judgment in this intersection traffic accident case. Defendant had the right-of-way (green light) when plaintiff made a left turn directly into defendant’s path of travel. Plaintiff’s testimony that defendant was speeding was not enough to raise a question of fact: “A violation […]

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THE DEFENDANT DID NOT CONSENT, IN A WRITING SIGNED IN OPEN COURT, TO THE SUBSTITUTION OF AN ALTERNATE JUROR AFTER DELIBERATIONS HAD BEGUN REQUIRING A NEW TRIAL; THE SHOWUP IDENTIFICATION OF DEFENDANT WAS UNREASONABLE AND UNDULY SUGGESTIVE REQUIRING DISMISSAL OF THE COUNTS RELATED TO ONE OF THE TWO ROBBERIES (SECOND DEPT). ​

The Second Department, reversing one of defendant’s robbery convictions and ordering a new trial, determined (1) a new trial is required because the judge did not obtain defendant’s written and signed consent to the substitution of an alternate juror after deliberations had begun, and (2) the showup identification of the defendant was unreasonable and unduly […]

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