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Entries by Bruce Freeman

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A COURT’S POWER TO SEARCH THE RECORD AND AWARD SUMMARY JUDGMENT TO A NONMOVING PARTY IS LIMITED TO THE CAUSES OF ACTION OR ISSUES IN THE MOTIONS BEFORE IT (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, noted that a court’s power to search the record and award summary judgment to a nonmoving party is constrained by the causes of action or issues raised in the motions before it: Although the court has the authority to search the record and grant summary judgment to a […]

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NO APPEAL LIES FROM COUNTY COURT’S DISMISSAL WITHOUT PREJUDICE OF DEFENDANT’S APPLICATION FOR RESENTENCING UNDER THE DOMESTIC VIOLENCE SURVIVORS JUSTICE ACT (DVSJA). ​

The Third Department, in a full-fledged opinion by Justice Powers, affirming County Court, determined no appeal lies from the dismissal-without-prejudice of defendant’s application for resentencing under the Domestic Violence Survivors Justice Act (DVSJA): … [County Court] dismissed the application without prejudice finding that, although she met the step one eligibility criteria for an alternative sentence, […]

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ALTHOUGH THE ALLEGATION PLAINTIFF STOPPED SUDDENLY DOES NOT REBUT THE PRESUMPTION THE REAR DRIVER WAS NEGLIGENT IN A REAR-END COLLISION, THE REAR-DRIVER’S ALLEGATION THE PLAINTIFF STOPPED SUDDENLY FOR NO APPARENT REASON CREATES A QUESTION OF FACT ON THE ISSUE OF PLAINTIFF’S COMPARATIVE NEGLIGENCE (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined defendants’ claim that plaintiff stopped suddenly for no apparent reason supported defendant’s comparative-negligence affirmative defense in this rear-end collision case: The Supreme Court should have denied that branch of the plaintiff’s motion which was for summary judgment dismissing the defendants’ affirmative defense alleging comparative negligence. In support […]

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SUPREME COURT ERRONEOUSLY IGNORED AN ARTIFICIAL MONUMENT DESCRIBED IN A DEED WHEN ATTEMPTING TO RESOLVE A BOUNDARY DISPUTE (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the court, when attempting to resolve a boundary dispute, erred in ignoring an artificial monument, a railroad right-of-way, which was described in a deed: Here, plaintiffs’ deed includes the only deed call to a natural landmark, as it places the southeast corner of plaintiffs’ property at “a willow […]

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THE LANDOWNER ABUTTNG A SIDEWALK IN NYC HAS A NONDELEGABLE DUTY TO MAINTAIN THE SIDEWALK; HERE THE LANDOWNER FAILED TO DEMONSTRATE IT DID NOT HAVE CONSTRUCTIVE NOTICE OF THE PRESENCE OF ICE AND SNOW ON THE SIDEWALK BECAUSE IT DID NOT AVER WHEN THE SIDEWALK WAS LAST INSPECTED OR CLEANED PRIOR TO THE SLIP AND FALL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant landowner’s motion for summary judgment in this sidewalk ice and snow slip and fall case should not have been granted. The landowner failed to demonstrate it did not have constructive notice of the presence of snow and ice: Section 7-210 of the Administrative Code of the City […]

CLAIMANT DEMONSTRATED HE HAD NOT REMOVED HIMSELF FROM THE LABOR MARKET WITH DOCUMENTARY EVIDENCE; CLAIMANT WAS THEREFORE ENTITLED TO BENEFITS FROM THE TIME HE DEMONSTRATED ATTACHMENT TO THE WORKFORCE (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, over a dissent, determined claimant sufficiently demonstrated he had not removed himself from the job market and was therefore entitled to benefits: Claimant submitted extensive evidence of his job search, both through job location services and individually, providing more than 600 pages of proof that he filed […]

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IN THIS LEGAL MALPRACTICE ACTION, THE PLAINTIFF NEED NOT SHOW SHE ACTUALLY SUSTAINED DAMAGES TO SURVIVE A MOTION TO DISMISS (SECOND DEPT). ​

The Second Department, reversing Supreme Court’s dismissal of a legal malpractice complaint, noted that the plaintiff need not show she actually sustained damages to survive a dismissal motion: The plaintiffs alleged … that they retained the defendants to represent them in an action to recover damages for personal injuries the plaintiff … allegedly sustained in […]

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HERE THE AUTOMATIC DOOR AT A RESIDENTIAL FACILITY CLOSED ON THE ELDERLY PLAINTIFF; SENSORS WHICH WOULD PREVENT THE DOOR FROM CLOSING WERE AVAILABLE; THERE WAS A QUESTION OF FACT WHETHER THE DOOR WAS SAFE (THIRD DEPT). ​

The Third Department, reversing Supreme Court, determined the lawsuit stemming from an automatic door at a residential facility closing on the elderly plaintiff should not have been dismissed, despite the evidence that the door was not defective. There was evidence that sensors which would stop the door from closing when a person is in the […]

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THE HISTORY OF THE INTERACTION BETWEEN INFANT PLAINTIFF AND ANOTHER STUDENT RAISED A QUESTION OF FACT ABOUT WHETHER THE ATTACK ON INFANT PLAINTIFF WAS FORESEEABLE FROM THE SCHOOL’S PERSPECTIVE (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the negligent supervision action against defendant school should not have been dismissed. Infant plaintiff (E.E.) had been attacked and seriously injured by another student (J.H.). Supreme Court found the attack was not foreseeable. The Third Department found the evidence of foreseeability sufficient to raise a question of fact: […]

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PLAINTIFF DID NOT DEMONSTRATE DEFENDANT WAS PROPERLY SERVED OR EVEN NOTIFIED OF THE FORECLOSURE ACTION; THE COURT NEVER HAD JURISDICTION OVER DEFENDANT AND THE MOTION TO EXTEND THE TIME TO SERVE HER SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined plaintiff in this foreclosure action did not demonstrate defendant was properly served with the summons and complaint. Therefore the court never had jurisdiction over the defendant: … [T]he plaintiff was on notice in December 2018 that service upon the defendant allegedly was defective when the defendant moved to […]

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