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Entries by Bruce Freeman

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NEW YORK TRANSIT AUTHORITY WAS NOT ENTITLED TO DISMISSAL OF THE LABOR LAW 200 AND COMMON LAW NEGLIGENCE CAUSES OF ACTION ON COLLATERAL ESTOPPEL, GOVERNMENTAL IMMUNITY OR FACTUAL GROUNDS, RELEVANT LAW SUCCINCTLY EXPLAINED (SECOND DEPT).

The Second Department, modifying Supreme Court, determined that the defendant New York State Transit Authority (NYSTA) was not entitled to dismissal of the Labor Law 200 and common law negligence claims on collateral estoppel, governmental immunity, or factual grounds. The decision includes good explanations of all the legal principles involved. Claimants lost summary judgment motions […]

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INSURER’S ACTION FOR A DECLARATORY JUDGMENT THAT IT WAS NOT OBLIGATED TO INDEMNIFY THE DEFENDANT SCHOOL DISTRICT FOR A SETTLEMENT REACHED IN AN UNDERLYING ACTION (WHICH ALLEGED THE SCHOOL DISTRICT DID NOT PROTECT AGAINST ANTI-SEMITIC HARASSMENT) SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the insurer’s action against the defendant school district, seeking a declaratory judgment that the insurer is not obligated to indemnify the defendants for a settlement reached in mediation, should not have been dismissed. The underlying action alleged the school district did not protect the plaintiffs from anti-Semitic harassment and […]

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FORECLOSURE ACTION SHOULD HAVE BEEN DISMISSED AS TIME-BARRED, ALTHOUGH CPLR 210 (b) TOLLS THE STATUTE OF LIMITATIONS FOR AN ACTION AGAINST AN ESTATE, THE BANK DID NOT DEMONSTRATE DEFENDANT HUSBAND REPRESENTED HIS WIFE’S ESTATE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that plaintiff’s foreclosure action was time-barred. Although the action would have been timely against the estate of defendant’s (Kess’s) wife because of the 18-month post-death statute of limitations toll in CPLR 210 (b), plaintiff did not demonstrate Kess was representing his wife’s estate: …Kess demonstrated that the six-year statute of […]

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PLACEMENT OF THE CHILD WITH THE MATERNAL GRANDMOTHER RATHER THAN WITH HER FOSTER HOME WAS NOT SUPPORTED BY THE RECORD (SECOND DEPT).

The Second Department, reversing Family Court, determined the child, Tabitha, should not have been removed from her foster home and placed with her maternal grandmother: … T]he determination of the Family Court that it was in Tabitha’s best interests to be removed from her foster home, where she had resided for over four years, and […]

THE 2014 EXECUTIVE COMMITTEE OF THE SUFFOLK COUNTY COMMITTEE OF THE CONSERVATIVE PARTY DID NOT HAVE THE AUTHORITY TO FILL VACANCIES IN THE 2016 COUNTY COMMITTEE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the Executive Committee of the Suffolk County Committee of the Conservative Party did not have the authority to fill vacancies in the county committee. The 2014 Executive Committee could not fill vacancies in the 2016 County Committee: Election Law § 6-148 does not confer upon the Executive Committee […]

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DEFENDANT MADE TWO UNEQUIVOCAL REQUESTS FOR COUNSEL, HIS STATEMENT AND A BUCCAL SWAB SHOULD HAVE BEEN SUPPRESSED, ERROR NEED NOT BE PRESERVED FOR APPEAL, ERROR HARMLESS HOWEVER (SECOND DEPT).

The Second Department, over a dissent, determined defendant’s motion to suppress his statement and a buccal swab should have granted but the error was harmless. The dissent argued the error was not harmless. The court noted that a violation of the right to counsel can be raised on appeal even when the error was not […]

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UNDER A WEIGHT OF THE EVIDENCE ANALYSIS, DEFENDANT PROVED THE AFFIRMATIVE DEFENSE OF MENTAL DISEASE OR DEFECT, MURDER CONVICTION REVERSED (SECOND DEPT).

The Second Department, reversing defendant’s murder conviction after a weight of the evidence analysis, over a dissent, determined that defendant had proved the affirmative defense of mental disease or defect by the preponderance of the evidence: … [W]e conclude that the jury was not justified in finding that the preponderance of the evidence failed to establish that […]

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ALTHOUGH DEFENDANT RECORDED THE CODEFENDANT DOUSING THE HOMELESS MAN WITH LIGHTER FLUID AND SETTING HIM ON FIRE, THE EVIDENCE DID NOT SUPPORT THE CONCLUSION DEFENDANT ACTED AS AN ACCOMPLICE, CONVICTION REVERSED UPON A WEIGHT OF THE EVIDENCE ANALYSIS (SECOND DEPT).

The Second Department, reversing defendant’s conviction after a weight of the evidence analysis, determined the evidence did not support the conclusion defendant acted as an accomplice in the assault of a homeless man. The codefendant doused the homeless man with lighter fluid and set him on fire. The defendant said “Do that shit man” and […]

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OFFICER DID NOT HAVE A REASONABLE SUSPICION OF CRIMINAL ACTIVITY WHEN HE ASKED DEFENDANT ‘WHAT DO YOU HAVE,’ SEIZED WEAPON SHOULD HAVE BEEN SUPPRESSED (SECOND DEPT).

The Second Department, over an extensive dissent, in a comprehensive street stop (DeBour) analysis too detailed to fairly summarize here, determined the police officer did not have a reasonable suspicion that criminal activity was afoot when he asked defendant, a passenger in a car, “what do you have.” Defendant replied that he had a “piece” […]

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PLAINTIFF, IN THE FACE OF WRITTEN CONTRACTS TO THE CONTRARY, DID NOT DEMONSTRATE AT TRIAL THAT A PARTNERSHIP, AS OPPOSED TO AN INDEPENDENT CONTRACTOR, RELATIONSHIP EXISTED BETWEEN PLAINTIFF AND DEFENDANT, DEFENDANT’s MOTION FOR A JUDGMENT AS A MATTER OF LAW SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s(Kaufman’s) motion for judgment as a matter of law pursuant to CPLR 4401 should have been granted. There were written contracts between plaintiff and Kaufman indicating plaintiff was an independent contractor. Plaintiff alleged he was a partner, entitled to 50% of the income. The proof submitted by plaintiff, a […]

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