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Entries by Bruce Freeman

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Motion to Renew Based Upon New Evidence Should Have Been Granted/Request to Depose Knowledgeable Witnesses In Addition to the Witnesses Initially Provided by the Municipality Should Have Been Granted

The Third Department determined a motion to renew based upon newly discovered evidence and a motion to depose additional knowledgeable witnesses (from the municipality) should have been granted: To be entitled to renewal, plaintiffs were required to provide new facts that would change the prior determination as well as a justifiable excuse for not providing […]

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In a Class Action Suit, Class-Representatives’ Failure to Keep In Touch With Their Lawyer Justified Their Withdrawal as Class Representatives

The Third Department determined Supreme Court should have allowed representatives of the class (in a class action lawsuit) to withdraw based upon the representatives’ failure to keep in touch with their lawyer: Supreme Court abused its discretion in declining to permit the seven class representatives to withdraw from this action. CPLR 3217 (b) provides that […]

Zoning Board Should Have Made Every Effort to Accommodate Religious Use/Zoning Board’s Denial of Variances Annulled and Variances Granted

The Second Department affirmed Supreme Court’s determination annulling a zoning board’s denial of variances to allow parking for a religious organization (and granting the variances).  The court noted that religious organizations are not exempt from zoning regulation, but the Board was obligated to make an effort to accommodate the religious use (which it did not […]

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Civil Contempt Does Not Include the Element of Willfulness/Adverse Inference May Be Drawn Re: Assertion of Privilege Against Self-Incrimination in Civil Contempt Proceeding

In a full-fledged opinion by Justice Angiolillo, the Second Department cleared up some confusion created by conflicting authority concerning whether willfulness was an element of civil contempt.  The defendant was held in contempt based upon his failure to deposit the proceeds of the sale of marital property with the court. The Second Department concluded willfulness […]

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Prosecutorial Misconduct and Defense Counsel’s Ineffectiveness Required Reversal

The Second Department reversed defendant’s conviction, in the interest of justice, finding the prosecutor’s improper comments during summation deprived defendant of a fair trial. In addition, the Second Department determined defense counsel was ineffective in eliciting inadmissible expert testimony detrimental to the defense and failing to object to the prosecutor’s misconduct: Re: prosecutorial misconduct during […]

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Abstention from Alcohol While Incarcerated and Exemplary Prison Record Did Not Warrant Downward Departure Re: Sex Offender Status/Basics of Sex Offender Registration Act (SORA) Proceedings Explained In Some Depth

The First Department affirmed the sex offender status determined by Supreme Court, rejecting the arguments that an exemplary prison record and abstention from alcohol during a long incarceration warranted a downward departure.  The court took the trouble to explain some of the basics of a Sex Offender Registration Act (SORA) determination: In assessing a sex […]

Part Performance Exception to the Statute of Frauds Does Not Apply to Contracts Which Cannot Be Performed Within One Year

The First Department, in a full-fledged opinion by Justice Saxe, determined that the part performance exception to the statute of frauds should not be applied to contracts that cannot be performed within one year.  The court first explained what “capable of performance within one year” means, and then looked at the controlling statute (General Obligations […]

“Equitable Medical Monitoring” Cause of Action Rejected; Plaintiffs, Who Had No Signs of Cancer from Heavy Smoking, Were Not Entitled to Bring an Action to Cover the Costs of CT Scans to Periodically Check for Cancer

In a full-fledged opinion by Judge Pigott, with two dissenting judges, the Court of Appeals determined New York does not recognize a “medical monitoring” cause of action.  The plaintiffs were all heavy smokers.  None of the plaintiffs is currently sick.  The lawsuit sought damages to pay for “medical monitoring” (low dose CT scans “LDCT”) as […]

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