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Entries by Bruce Freeman

ALTHOUGH NO SPECIAL RELATIONSHIP EXISTED BETWEEN BROKER AND PLAINTIFF, CAUSE OF ACTION BASED UPON PLAINTIFF’S SPECIFIC REQUEST FOR FLOOD INSURANCE (WHICH WAS NOT INCLUDED IN THE POLICY) SURVIVED SUMMARY JUDGMENT.

The Fourth Department determined summary judgment was properly awarded to the insurance broker (First Niagara) because no special relationship existed with plaintiff. Plaintiff specifically asked defendant whether plaintiff had flood insurance and further stated plaintiff wanted flood insurance. Defendant never responded. After flood damage occurred plaintiff learned the policy did not include flood insurance. Although […]

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PROOF OF STANDING DID NOT MEET CRITERIA OF THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE, BANK’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN DENIED.

The Fourth Department, reversing Supreme Court, determined the bank’s proof in this foreclosure action did not meet the criteria of the business records exception to the hearsay rule: We agree with defendants that the affidavit submitted by plaintiff in support of its motion was insufficient to establish standing. The Caliber employee who authored the affidavit […]

THE RECORD DID NOT SUPPORT THE AWARD OF PRIMARY PHYSICAL CUSTODY TO MOTHER, FAMILY COURT REVERSED, ALTHOUGH THE CHILD WISHED TO STAY WITH MOTHER, THAT FACTOR WAS AFFORDED LITTLE WEIGHT DUE TO THE CHILD’S YOUNG AGE.

The Fourth Department, reversing Family Court, determined there was not a sound and substantial basis in the record for awarding primary physical custody to the mother. Although the child wished to stay with mother, the Fourth Department accorded that factor little weight because of the child’s young age and mother’s permissive parenting style: It is […]

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QUESTIONS OF FACT RAISED WHETHER DEFAMATORY STATEMENTS WERE MOTIVATED SOLELY BY MALICE, THEREBY OVERCOMING QUALIFIED IMMUNITY, AND WERE MADE WITHIN THE SCOPE OF EMPLOYMENT, THEREBY RENDERING THE EMPLOYER VICARIOUSLY LIABLE.

The Fourth Department, modifying Supreme Court, determined the defamation causes of action properly survived summary judgment with respect to the speaker (Cramer) and the defamation causes of action against Cramer’s employers (the village and fire department), based upon vicarious liability, should not have been dismissed. Cramer had made statements to her employer that plaintiff was […]

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PEOPLE PROPERLY ALLOWED TO IMPEACH THEIR OWN WITNESS, THE WITNESS’S TESTIMONY AFFIRMATIVELY DAMAGED THE PEOPLE’S CASE AND WAS NOT, AS ARGUED BY THE CONCURRING JUSTICES, MERELY NEUTRAL OR UNHELPFUL.

The Fourth Department, over a two-justice concurrence, determined the People were properly allowed to impeach their own witness when the witness testified she did not see the driver of the car from which shots were fired. She had previously stated the defendant was the driver. The concurring justices argued that the witness’s changed testimony did […]

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DEFENDANT WAS ERRONEOUSLY TOLD HE COULD APPEAL THE GRAND JURY EVIDENCE ISSUES AFTER ENTERING A GUILTY PLEA, HIS MOTION TO WITHDRAW HIS PLEA UPON LEARNING OF THE ERROR SHOULD HAVE BEEN GRANTED. ​

The Fourth Department determined defendant’s motion to withdraw his guilty plea should have been granted. Defendant was told he could appeal the court’s ruling that the grand jury minutes constituted legally sufficient evidence of the charges in the indictment. However the denial of a motion to dismiss arguing the insufficiency or inadmissibility of the grand […]

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MULTIPLICITOUS COUNTS OF SEX OFFENSE INDICTMENT DISMISSED IN THE INTEREST OF JUSTICE, THE COUNTS CHARGED SINGLE UNINTERRUPTED OFFENSES WHICH SHOULD NOT HAVE BEEN SPLIT INTO TWO COUNTS EACH.

The Fourth Department, in the interest of justice, determined several counts of the sex offense indictment were multiplicitous and therefore must be dismissed. The defendant was charged with two counts for single uninterrupted events, touching the victim’s vagina while simultaneously having the victim touch his penis: An indictment is multiplicitous “when a single offense is […]

FOR CAUSE CHALLENGE TO JUROR WHO WANTED TO HEAR FROM EVERYONE (IMPLICITLY INCLUDING THE DEFENDANT) SHOULD HAVE BEEN GRANTED, CONVICTION REVERSED.

The Fourth Department, reversing defendant’s conviction, determined a for cause challenge to a juror who said she would like to hear from everybody (implicitly including the defendant) should have been granted: Upon being asked by defense counsel whether she thought that she “would have to hear from [defendant] in order to determine what the verdict should […]

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COUNTY LAW 308 DOES NOT PROHIBIT DISCOVERY OF 911 CALL RECORDS IN A CIVIL LAWSUIT, INCLUDING THE RECORDS OF 911 CALLS MADE BY NONPARTIES.

The Fourth Department, in a full-fledged opinion by Justice DeMoyer, determined Supreme Court properly ordered the county to provide to plaintiff records of 911 calls made during a severe winter storm. Plaintiff’s decedent was stranded in his car during the storm and called 911 for help. Help did not arrive until nearly 24 hours later, after […]

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