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Entries by Bruce Freeman

Plaintiff Can Not Recover Under Her Own Supplemental Uninsured/Underinsured Motorist Policy When Her Recovery Exceeded the Limit of that Policy

The Second Department explained how plaintiff’s supplemental uninsured/underinsured motorist (SUM) policy related to her recovery of damages under the policy when she, as a pedestrian, was struck by a car and recovered damages in excess of the SUM limit: When a policyholder purchases supplemental uninsured/underinsured motorist (hereinafter SUM) coverage in New York, he or she […]

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Criteria for Imposing Order of Protection for Longer than Two Years Based on Family Offense Involving Aggravating Circumstance (Use of Weapon Here) Explained

The Second Department, in a family offense proceeding involving the use of a weapon, explained the criteria for issuing an order of protection for a period longer than two years: To issue an order of protection with a duration exceeding two years on the ground of aggravating circumstances, the Family Court must set forth “on […]

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Wife’s Concealment of Terminal Cancer Did Not Warrant Rescission of Divorce Settlement Agreement

The Second Department determined the wife’s concealment of the condition of her health (terminal cancer) during the negotiation of a divorce did not constitute actionable fraud.  The husband sought to rescind the agreement after learning of his wife’s illness (after her death), alleging he would not have entered the agreement had he been aware of […]

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Defendant in Medical Malpractice Action Should Have Been Allowed to Amend His Answer to Add Statute of Limitations Affirmative Defense

The Second Department reversed Supreme Court’s denial of defendant’s motion to amend his answer by adding the passing of the statute of limitations as an affirmative defense.  The Second Department explained: Here, it is undisputed that the two-year statute of limitations applicable to a cause of action alleging wrongful death began to run on August […]

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School District Did Not Owe Special Duty to Plaintiff Injured in Fight After Hours on School Grounds; Failure to Lock Gate Not Proximate Cause of Injury

Plaintiff was assaulted on an athletic filed owned by defendant school district while in a group which was on the field without permission at 9:30 pm. The plaintiff alleged the school district was negligent in not providing security and in not locking the gates to the field. The Second Department determined the school district owed […]

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Snow Removal Contractor Owed Duty to Slip and Fall Plaintiff

The Second Department determined plaintiff in a slip and fall case was owed a duty of care by a snow-removal contractor.  The Second Department explained the relevant law and its application to the facts of the case as follows: “As a general rule, a limited contractual obligation to provide snow removal services does not render […]

Where Plaintiff’s Vehicle Repaired to Pre-Accident Condition, No Additional Recovery for Diminution in Resale Value

Plaintiff’s brand new Mercedes was damaged in an accident but was fully repaired, and the repairs were paid for by the defendants’ insurance carrier.  Plaintiff sought damages based upon the diminution in resale value resulting from the fact that potential buyers would be made aware of the car’s involvement in the accident.  The Second Department […]

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Questions of Fact Raised Whether Negligent Diversion of Water by Private Property Owner and Negligent Repair by Town Caused Dangerous Icy- Road-Condition; Defendant Driver Lost Control of Her Car on the Ice and Collided with Plaintiffs

The Second Department determined that questions of fact existed about whether defendant abutting property owner (Gromley) and the defendant town created the icy road condition that caused defendant driver to lose control of her car, thereby allegedly injuring the plaintiffs in a collision with the school bus in which plaintiffs were riding: A private landowner […]

Question of Fact Whether Defect in Basketball Court Was Concealed Precluded Summary Judgment Based upon Doctrine of Assumption of the Risk

In reversing Supreme Court, the Second Department determined there was a triable issue of fact whether plaintiff, who was injured when he tripped on part of a defunct sprinkler system while playing basketball on defendant-town’s court, assumed the risks associated with using the court.  The Second Department wrote: Here, the Town failed to satisfy its […]

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Irreparable Injury to Plaintiffs Not Demonstrated and Balance of Equities Did Not Favor Plaintiffs Who Sought Injunction Prohibiting Landlord from Proceeding with a Water-Damage-Repair Plan Plaintiffs Thought Inadequate

In a full-fledged opinion by Justice Saxe, the First Department affirmed the denial of a preliminary injunction where plaintiffs-tenants sought to prohibit the landlord from going forward with repairs necessitated by water damage. The landlord proposed a repair-plan which involved the installation of insulation in the walls which would reduce the interior space of the […]

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