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Entries by Bruce Freeman

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PLAINTIFF’S MOTION TO COMPEL POST-JUDGMENT DISCOVERY TO DETERMINE DAMAGES SHOULD HAVE BEEN GRANTED, DEFENDANTS’ ANSWER HAD BEEN STRUCK FOR FAILURE TO COMPLY WITH A DISCOVERY ORDER AND A DEFAULT JUDGMENT HAD BEEN GRANTED.

The Fourth Department determined plaintiff’s motion seeking discovery to determine damages after defendants’ answer had been struck should have been granted. Plaintiff alleged defendants had breached “noncompete” provisions of an employment agreement. Defendant (Morrow) did not show up for a deposition and defendants did not provide discovery. Supreme Court granted plaintiff’s motion to strike the […]

CONVENIENCE STORE HAD TAKEN ADEQUATE MEASURES TO ADDRESS TRACKED IN SLUSH AND SNOW DURING A STORM, DEFENDANTS’ SUMMARY JUDGMENT MOTION IN THIS SLIP AND FALL CASE WAS PROPERLY GRANTED. ​

The First Department determined the convenience store’s motion for summary judgment in this slip and fall case was properly granted. Plaintiff alleged she slipped and fell on tracked in slush and snow at the front counter during a snow storm. Defendants had put a mat down, marked the area with a cone, and mopped the […]

QUESTION OF FACT WHETHER DEFENDANTS HAD CONSTRUCTIVE NOTICE OF A DEFECTIVE TAILGATE, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED.

The First Department, reversing Supreme Court, determined plaintiff had raised a question of fact about defendants’ constructive notice of a defective truck tailgate. Plaintiff, a truck driver, was injured when loading a pallet onto the truck (owned by defendants and rented to plaintiff’s employer). Plaintiff alleged his injury was caused by the deteriorated condition of the […]

STATE’S EXPERT DID NOT ESTABLISH RESPONDENT SEX OFFENDER SHOULD BE SUBJECT TO CIVIL COMMITMENT, SUPREME COURT REVERSED. ​

The First Department, reversing Supreme Court, determined the state did not demonstrate respondent (sex offender) should be subject to civil commitment. The conclusory allegations of the state’s expert were belied by the respondent’s record: The testimony of the State’s experts fell short of the “detailed psychological portrait” necessary to establish, by clear and convincing evidence, that respondent’s […]

TERMINATION OF PARENTAL RIGHTS PROCEEDING REMITTED FOR AGE-APPROPRIATE CONSULTATION CONCERNING THREE OF THE CHILDREN TO DETERMINE THEIR WISHES.

The Third Department determined Family Court did not engage in an age-appropriate consultation concerning three of the children to determine their wishes in this “termination of parental rights” proceeding. The matter was remitted for that purpose: Contrary to the argument by the attorney for the three younger children, the mere participation at the hearing and […]

LAWSUIT INVOLVED WITNESSES AND DOCUMENTS LOCATED IN RUSSIA, DISMISSAL BASED UPON THE DOCTRINE OF FORUM NON CONVENIENS WAS PROPER.

The First Department determine the lawsuit was properly dismissed under the doctrine of forum non conveniens. The lawsuit involved people and documents located in Russia. The fact that defendants wired money from New York was not a sufficient contact: “The application of the doctrine of forum non conveniens is a matter of discretion to be […]

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NEW YORK’S PERSISTENT FELONY OFFENDER SENTENCING SCHEME IS CONSTITUTIONAL, IT DOES NOT INVOLVE PROOF OF A FACT OTHER THAN A PRIOR FELONY CONVICTION.

The Court of Appeals, in a full-fledged opinion by Judge Wilson, reaffirmed its prior holdings finding New York’s persistent felony offender sentencing scheme constitutional: The Sixth and Fourteenth Amendments guarantee criminal defendants in state courts “the right to a speedy and public trial, by an impartial jury.” To satisfy that right, the People must prove […]

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PROSECUTOR’S CHARACTERIZATION OF DNA EVIDENCE WAS NOT IMPROPER, DEFENSE COUNSEL’S FAILURE TO OBJECT TO THE CHARACTERIZATION WAS NOT INEFFECTIVE ASSISTANCE.

The Court of Appeals, reversing the appellate division, determined the characterization of the DNA evidence by the prosecutor was not improper, and defense counsel’s failure to object to the characterization did not constitute ineffective assistance: The People’s forensic expert gave statistical testimony regarding the likelihood (“1.661 quadrillion times more likely”) that defendant and his deceased […]

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THE DOCTRINE OF PROMISSORY ESTOPPEL CAN BE APPLIED TO BYPASS THE STATUTE OF FRAUDS IF THE RESULT OF ENFORCING THE STATUTE WOULD BE UNCONSCIONABLE, THE RESULT HERE WAS NOT UNCONSCIONABLE. ​

The Court of Appeals, in a full-fledged opinion by Judge Fahey, over a dissent (raising a different issue), agreeing with the Third Department, held that the doctrine of promissory estoppel can be applied to bypass the Statute of Frauds if enforcing the Statute of Frauds would lead to an unconscionable result. Here, however, disagreeing with the […]

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JUDGE’S INADEQUATE AND IMPROPER RESPONSE TO JURY QUESTIONS REQUIRED A NEW TRIAL IN THIS MEDICAL MALPRACTICE CASE, DEFENSE VERDICT REVERSED.

The Third Department, reversing the defense verdict in this medical malpractice trial, determined the judge’s response to jury questions was inadequate and improper. The judge did not respond at all to one question. And the judge’s response was different from the response discussed with counsel: … [I]n addition to Supreme Court’s failure to respond in […]

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