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Entries by Bruce Freeman

Family Court Did Not Adequately Consider the Factors Relevant to Mother’s Request for Unsupervised Visitation/Determination of Visitation Improperly Delegated to Father

The Third Department determined Family Court did not adequately consider mother’s request for unsupervised visitation with her children and improperly delegated the court’s authority to determine visitation to the father: …Both the children and the noncustodial parent have a right to meaningful visitation … .  “[I]n providing for visitation that will be meaningful, the frequency, […]

Father’s Incarceration Justified a Modification of Custody/Sole Custody Awarded to Mother

The Third Department upheld Family Court’s finding father’s incarceration justified a modification of custody and the grant of sole custody to the mother: Initially, we note the absence of anything in the record to indicate that, but for the father’s incarceration, joint custody would not have continued to be appropriate.  Nonetheless, the father’s incarceration presented […]

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Defendant-Doctor in a Medical Malpractice Action May Be Questioned (by the Plaintiff) As an Expert About His Own Treatment of Plaintiff

The Third Department determined (1) the defendant doctor in a medical malpractice action can be deposed as an expert (by the plaintiff)  with respect to his treatment (the doctor was asked whether the treatment as described in the records deviated from the standard of care); (2) the defendant doctor must answer the question whether he […]

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No Standing to Challenge Governmental Action—No Injury-In-Fact and the Type of Potential Injury Alleged Does Not Fall Within the Zone of Interest Underlying the Statute

The Third Department determined that the petitioners, manufacturers of electronically-operated partitions used in school buildings, did not have standing to bring an action compelling the NYC Department of Education to comply with the Education Law (Education Law 409-f) and regulations with respect to the maintenance of the partitions.  The petitioners argued that they are subject […]

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Horse Deemed a “Companion Animal”/Aggravated Cruelty to Animals Conviction Upheld

The Third Department affirmed defendant’s convictions, which stemmed from the killing of a horse.  The court determined the horse was a “companion animal” within the meaning of the Agricultural and Markets Law and, therefore, the elements of aggravated cruelty to animals were proven: …[D]efendant claims that the charge of aggravated cruelty to animals was jurisdictionally […]

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Failure to Call One of the Parties Who Signed a Drug-Analysis Report Did Not Violate the Confrontation Clause/No Evidence the Party Conducted Any Testing or Analysis

The Third Department determined that the Confrontation Clause was not violated because a party [Lafond] who had signed the report identifying the controlled substance defendant was accused of selling did not testify.  The court determined Lafond had nothing to do with the chemical tests and analysis.  The party who actually did the chemical tests and […]

New Trial Ordered: Juror Found “Grossly Unqualified” by the Trial Judge Should Have Been Dismissed/One Juror Was Absent from the Deliberations for About An Hour

The Third Department ordered a new trial was because one of the juror’s, juror No. 4 should have been dismissed after the trial court determined that the juror was “grossly unqualified,” and because deliberations continued while juror No. 4 was absent from the jury room for about an hour: “If at any time after the […]

Restitution Hearing Required/Insufficient Proof to Substantiate the Amount/Conclusory Admission by Defendant Not Enough

The Third Department determined defendant was entitled to a restitution hearing, noting that the record did not include proof sufficient to substantiate the restitution amount.  The defendant’s stating a dollar amount, or a conclusory admission of the amount in a plea agreement, is not enough to meet the court’s and the People’s burden: A restitution […]

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Defendant Entitled to a Hearing on His Motion to Vacate His Conviction/Defendant Alleged He Would Not Have Pled Guilty Absent His Attorney’s Affirmative Misinformation About the Deportation Consequences of the Plea

The Third Department, in a full-fledged opinion by Justice Spain, determined defendant was entitled to a hearing on his motion to vacate his conviction based on the allegation defense counsel gave defendant affirmative misinformation about the deportation consequences of his guilty plea: Defendant’s motion to vacate sufficiently raises a question as to whether trial counsel […]

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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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