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Entries by Bruce Freeman

SECOND DEPARTMENT JOINS THE THIRD AND FOURTH DEPARTMENTS IN HOLDING INDIVIDUAL MUNICIPAL EMPLOYEES NEED NOT BE NAMED AS DEFENDANTS IN A NOTICE OF CLAIM.

The Second Department decided to follow the Third and Fourth Departments and did not require the naming of individual municipal employees as defendants in a notice of claim. The decision in this false arrest, malicious prosecution and civil rights violation case is substantive and deals with several issues not summarized here, including the District Attorney’s […]

FAMILY COURT SHOULD HAVE MADE FINDINGS ALLOWING JUVENILE TO PETITION FOR SPECIAL IMMIGRANT JUVENILE STATUS, PARENTAL NEGLECT PRECLUDED REUNIFICATION.

The Second Department, reversing Family Court, determined Family Court should have made findings which would allow the juvenile to petition for special immigrant juvenile status (SIJS). Reunification with a parent was precluded by parental neglect, including excessive corporal punishment, and forcing the juvenile to work rather than attend school: Pursuant to 8 USC § 1101(a)(27)(J) […]

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INSUFFICIENT EVIDENCE TO SUPPORT PHYSICAL INJURY ELEMENT OF ASSAULT THIRD, INSUFFICIENT EVIDENCE TO WARRANT SENTENCING AS A PERSISTENT FELONY OFFENDER.

The Second Department determined the evidence of physical injury was not sufficient to support the assault third conviction. The court further determined the totality of the circumstances did not support sentencing defendant as a persistent felony offender: The record, which contains photographs that were shown to the jury depicting the complainant’s injury, demonstrated that the […]

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PLAINTIFFS HAD STANDING TO SUE FOR LEGAL MALPRACTICE STEMMING FROM A TRIAL BROUGHT IN THE NAME OF PLAINTIFFS’ CHAPTER 13 BANKRUPTCY TRUSTEE.

The Second Department, reversing Supreme Court, over a dissent, determined the plaintiffs, who were discharged in Chapter 13 bankruptcy proceedings, could sue for legal malpractice stemming from a personal injury trial brought in the name of the bankruptcy trustee. The plaintiffs alleged the recovery in the personal injury trial was diminished because the jury became aware an […]

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TERMINATION OF OUT OF WORK SCHOOL DISTRICT EMPLOYEE PURSUANT TO THE CIVIL SERVICE LAW IS NOT ARBITRABLE, PETITION TO STAY ARBITRATION SHOULD HAVE BEEN GRANTED.

The Second Department determined the school district’s petition to stay arbitration should have been granted. A school district employee, Turco, was injured on the job and was out of work on Workers’ Compensation leave for more than a year. The district terminated his employment pursuant to Civil Service Law 71. Turco filed a grievance with […]

DEPARTMENT OF CONSUMER AFFAIR’S DETERMINATION WAS AFFECTED BY AN ERROR OF LAW WHICH RESULTED IN A MISINTERPRETATION OF THE ADMINISTRATIVE CODE, DETERMINATION SHOULD HAVE BEEN ANNULLED.

The Second Department determined that the imposition of a fine by the NYC Department of Consumer Affairs (DCA) was improper because the fine was based upon a misinterpretation of a provision of the NYC Administrative Code. The Article 78 petition seeking annulment of the DCA’s determination should have been granted: Here, the DCA’s determination was […]

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THREE YEAR STATUTE OF LIMITATIONS FOR A FALSE ARREST CAUSE OF ACTION UNDER 42 USC 1983 BEGAN TO RUN UPON ARRAIGNMENT.

The First Department noted that the three year statute of limitations for a false arrest cause of action under 42 USC 1983 began to run upon arraignment: The three-year limitations period on a section 1983 claim based on false arrest begins to run “when the alleged false imprisonment ends” — that is, when the arrestee becomes […]

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ALTHOUGH DEFENDANT OBJECTED TO THE SANDOVAL RULING AT TRIAL, THE OBJECTION WAS NOT ON THE PRECISE GROUND RAISED ON APPEAL, THE ISSUE WAS THEREFORE NOT PRESERVED.

The Court of Appeals, in a full-fledged opinion by Judge Rivera, over a two-judge concurring opinion, determined defendant’s objection to a Sandoval ruling about the admissibility of evidence of a juvenile delinquency adjudication did not preserve the precise issue which was the subject of the appeal. The concurring opinion argued the error had been preserved, but […]

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DEFENDANT’S HAND UNDER HIS HOODIE WAS SUFFICIENT TO SUPPORT THE ELEMENT OF ROBBERY FIRST WHICH REQUIRES THE DISPLAY OF WHAT APPEARS TO BE A FIREARM.

The Court of Appeals, in a full-fledged opinion by Judge Fahey, over a full-fledged dissenting opinion, determined the evidence was sufficient to support the element of robbery first degree which requires the display of what appears to be a firearm. The defendant threatened to shoot the teller and, at some point in time, one of his […]

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EVIDENCE OF AN ALLEGED PRIOR IDENTICAL SEXUAL ASSAULT NOT ADMISSIBLE TO SHOW INTENT, MOTIVE, OR AS BACKGROUND EVIDENCE, CONVICTION REVERSED.

The Court of Appeals, in a full-fledged opinion by Justice Abdus-Salaam, reversing defendant’s conviction, determined evidence of an alleged prior sexual assault, identical to the charged offense, should not have been admitted to show intent or motive, or as background evidence: Here, … the victim’s testimony as to the alleged prior sexual abuse was not […]

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