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Entries by Bruce Freeman

NO NEED TO SPECIFY CRIME TO BE COMMITTED DURING A CHARGED BURGLARY IN THE SUPERIOR COURT INFORMATION, RESTITUTION FOR AN UNCHARGED BURGLARY IMPROPERLY ORDERED (THIRD DEPT).

The Third Department determined the superior court information (SCI) charging burglary did not need to specify the crime to be committed during the robbery. The court further found that it was error to impose restitution for a burglary which was not charged in SCI: Defendant further asserts that the SCI is jurisdictionally defective because it […]

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PLAINTIFF RAISED A QUESTION OF FACT ABOUT THE APPLICABILITY OF THE CONTINUOUS TREATMENT DOCTRINE IN THIS MEDICAL MALPRACTICE CASE, DESPITE A 30 MONTH PERIOD BETWEEN VISITS (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Garcia, over a three-judge dissent, determined that plaintiff had raised a question of fact about whether the continuous treatment doctrine tolled the statute of limitations in this medical malpractice action, despite a 30-month period between visits. Decision holding that a gap in treatment longer than […]

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NYC HOUSING AUTHORITY’S RULES DO NOT ALLOW A SINGLE ADULT AND ADULT CHILD TO RESIDE PERMANENTLY IN A ONE BEDROOM APARTMENT, ADULT CHILD ALLOWED TEMPORARY RESIDENCY TO CARE FOR HIS MOTHER WAS NOT ENTITLED TO REMAINING FAMILY MEMBER STATUS UPON THE DEATH OF HIS MOTHER (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Wilson, over a concurring opinion, reversing the appellate division, determined the petitioner’s application for remaining family member (RFM) status allowing him to reside in his late mother’s one bedroom apartment was properly denied. The New York City Housing Authority’s (NYCHA’s) rules do not allow a […]

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EVIDENCE OF CONSPIRACY NOT SUFFICIENT TO SUPPORT CONVICTION, PRESENCE WHEN CONSPIRACY DISCUSSED BY OTHER GANG MEMBERS NOT ENOUGH (CT APP).

The Court of Appeals, over a two-judge dissent, affirming the appellate division, determined the evidence was insufficient to support the conviction of conspiracy in the second degree. The defendant’s mere presence when the conspiracy was discussed by other gang members was not enough: … [A]t the core of the People’s case is evidence of defendant’s […]

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DEFENDANT WAS ENTITLED TO DISMISSAL OF THE MURDER INDICTMENT ON CONSTITUTIONAL SPEEDY TRIAL GROUNDS, SIX-YEARS BETWEEN ARREST AND GUILTY PLEA, SPEEDY TRIAL IS NOT A MIXED QUESTION OF LAW AND FACT (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Fahey, over a three-judge dissent, reversing the appellate division, determined that defendant was entitled to dismissal of the second degree murder indictment (to which he pled guilty) on constitutional speedy trial grounds. The opinion is fact-based, covers several significant legal issues (i.e. CPL 30.30 is […]

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CITY WAS NOT A THIRD PARTY BENEFICIARY OF A CONSTRUCTION CONTRACT BETWEEN THE DORMITORY AUTHORITY OF NYS AND DEFENDANT ARCHITECTS, MALPRACTICE ACTION AGAINST THE ARCHITECTS WAS DUPLICATIVE OF THE BREACH OF CONTRACT ACTION (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, over two partial dissenting opinions, determined the city was not a third-party beneficiary of a contract between the Dormitory Authority of the State of New York (DASNY) and defendant architects (Perkins) and the negligence cause of action (professional malpractice) by DASNY against Perkins was […]

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EXCLUSIVITY OF A WORKERS’ COMPENSATION REMEDY PRECLUDED SUIT AGAINST AN EMPLOYEE OF A PERSON EMPLOYED BY PLAINTIFF’S EMPLOYER, THE NYC DEPARTMENT OF EDUCATION, IN THIS SLIP AND FALL CASE (SECOND DEPT).

The Second Department determined the exclusivity of a Workers’ Compensation remedy precluded plaintiff’s suit against an employee who worked for someone employed by plaintiff’s employer (NYC Department of Education, DOE). Plaintiff slipped and fell on a wet floor in a school cafeteria: Here, the New York City Department of Education (hereinafter DOE) employed Pedersen as […]

ALTHOUGH DECEDENT, A NEW YORK RESIDENT, WORKED FOR A PENNSYLVANIA COMPANY, NEW YORK HAD JURISDICTION OVER AN INJURY THAT OCCURRED OUTSIDE NEW YORK (THIRD DEPT).

The Third Department determined New York could exercise jurisdiction over an injury that occurred outside New York. Decedent was a New York resident working for a Pennsylvania company: The Board has jurisdiction over a claim for an injury occurring outside of New York where there are “sufficient significant contacts” between the employment and New York … […]

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STORM IN PROGRESS EVIDENCE IN THIS SIDEWALK SLIP AND FALL CASE INSUFFICIENT, EVIDENCE SUBMITTED IN REPLY PAPERS SHOULD NOT HAVE BEEN CONSIDERED, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this sidewalk slip and fall case should have been denied. The evidence of a storm in progress was insufficient. The climatological analysis report submitted in the reply papers should not have been considered. There was no evidence when the sidewalk was last […]

TENANT ABUTTING SIDEWALK DID NOT DEMONSTRATE THAT IT DID NOT CLEAR ICE AND SNOW FROM THE SIDEWALK AND THAT IT DID NOT EXACERBATE THE DANGEROUS CONDITION, MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE PROPERLY DENIED (SECOND DEPT).

The Second Department determined the defendant’s (CVS’s) motion for summary judgment in this sidewalk slip and fall case was properly denied. CVS did not demonstrate that it made no efforts to clear the sidewalk and that it did not exacerbate the dangerous condition: CVS failed to demonstrate its prima facie entitlement to judgment as a […]

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