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Entries by Bruce Freeman

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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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THE ERRORS MADE IN THE NOTICE OF CLAIM IN THIS SLIP AND FALL CASE WERE NOT MADE IN BAD FAITH AND DID NOT PREJUDICE THE MUNICIPAL DEFENDANT; THEREFORE AMENDMENT OF THE NOTICE OF CLAIM SHOULD HAVE BEEN ALLOWED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the erroneous incident-date in the notice of claim did not justify dismissal of the action in this sidewalk slip and fall case. The error was not made in bad faith and did not prejudice the municipal defendant: The Transit defendants … moved … pursuant to CPLR 3211(a) to […]

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DEFENDANT’ CLOTHING STORE’S EMPLOYEE ALLEGEDLY ATTEMPTED TO RECORD PLAINTIFF IN A CHANGING ROOM; THE NEGLIGENT HIRING CAUSE OF ACTION, BASED ON THE ALLEGATION THE STORE DID NOT CONDUCT A BACKGROUND CHECK BEFORE HIRING THE EMPLOYEE, SHOULD HAVE BEEN DISMISSED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined defendant clothing store (Gap) was entitled to summary judgment dismissing the negligent-hiring-supervision complaint. Plaintiff alleged a store employee, Medel, attempted to record her on a cell phone as she was changing in a fitting room. The negligent hiring cause of action alleged Gap did not do a background […]

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PLAINTIFF’S AFFIDAVIT DID NOT STATE IT WAS BASED ON FIRST-HAND KNOWLEDGE AND THE UNCERTIFIED POLICE REPORT WAS INADMISSIBLE; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS PROPERTY-DAMAGE CASE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined summary judgment should not have been awarded plaintiff in this property-damage case. Plaintiff alleged defendant’s vehicle struck a brick wall and fence on plaintiff’s property. Plaintiff’s affidavit did not state it was based on first-hand knowledge and the uncertified police report was inadmissible: “A plaintiff in a negligence […]

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THE MOTION TO AMEND THE COMPLAINT TO IDENTIFY “JOHN DOE” “JANE DOE” DEFENDANTS AS POLICE OFFICERS IN THIS CIVIL RIGHTS CASE SHOULD NOT HAVE BEEN GRANTED; THE STATUTE OF LIMITATIONS HAD EXPIRED AND THE RELATION-BACK DOCTRINE DOES NOT APPLY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the motion to amend the complaint to identify police officers as the “John Doe, Jane Doe” defendants in this 18 USC 1983 false arrest and unlawful search case should not have been granted. The statute of limitations had expired and the relation-back doctrine did not apply—police officers are […]

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A LIENHOLDER NONPARTY TO AN ACTION THAT RESULTED IN A FEE AWARD TO A DEBTOR MAY SUE TO RECOVER THOSE FEES WHERE THE LIENHOLDER WAS NEITHER JOINED NOR REQUIRED TO INTERVENE IN THAT ACTION (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Rivera, reversing the Appellate Division, determined: “[a] lienholder nonparty to an action that resulted in a fee award against a debtor may challenge the legal basis of the judgment in a separate proceeding to recover those fees. We conclude that because the nonparty was neither […]

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IN THIS FIRE-DAMAGE CASE, THE INSURANCE POLICY IMPOSED A TWO-YEAR LIMITATION PERIOD; THE ACTION WAS NOT BROUGHT UNTIL SIX YEARS AFTER THE FIRE; PLAINTIFF’S FAILURE TO PROVIDE ANY DETAILS DEMONSTRATING WHY THE RESTORATION COULD NOT BE COMPLETED WITHIN THE TWO-YEAR LIMITATION PERIOD REQUIRED DISMISSAL OF THE COMPLAINT; THREE-JUDGE DISSENT (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Singas, over an extensive three-judge dissent, determined plaintiff’s complaint in this fire-damage case was properly dismissed because the contractual two-year limitation period was exceeded and plaintiff made only conclusory allegations that the repairs could not be made within that two-year period: On this motion to […]

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THE CRITERIA FOR ALLOWING EXPERT TESTIMONY ON WITNESS-IDENTIFICATION OF A DEFENDANT CLARIFIED; WHETHER TO ALLOW SUCH EVIDENCE DOES NOT TURN ON THE EXISTENCE OR THE STRENGTH OF CORROBORATING EVIDENCE; HERE EXPERT TESTIMONY ON CROSS-RACIAL IDENTIFICATION WAS PROPERLY ALLOWED (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge Troutman, over an extensive dissent, affirming defendant’s conviction, clarified the criteria for admitting expert testimony on witness identification of a defendant. Here limited expert testimony was allowed on cross-racial identification: Questions of the admissibility and scope of expert testimony concerning the factors that affect the […]

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MISDEMEANOR CONVICTIONS WHICH DID NOT INVOLVE VIOLENCE OR SEXUAL CONDUCT WERE PROPERLY CONSIDERED BY COUNTY COURT IN DENYING DEFENDANT’S REQUEST FOR A SORA RISK-LEVEL REDUCTION TO LEVEL ONE, DESPITE THE BOARD OF EXAMINERS OF SEX OFFENDERS’ STATEMENT IT “WOULD NOT OPPOSE” A LEVEL ONE RISK ASSESSMENT (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Troutman, over an extensive three-judge dissent, determined County Court properly reduced defendant’s SORA risk-level from three to two, and properly refused to reduce the risk-level to one. The Court of Appeals concluded the 2003 misdemeanor convictions, which did not involve violence or sexual conduct, were […]

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