In reversing Supreme Court and dismissing a medical malpractice complaint, the Fourth Department determined plaintiff’s expert affidavit was speculative and therefore failed to raise a question of fact about whether the alleged negligence (the failure to order a particular CT scan) was the proximate cause of the injury: The expert contends that, if that CT […]
In reversing Family Court and granting father’s petition for a modification of a prior custody order awarding custody to mother, the Fourth Department wrote: “Generally, a court’s determination regarding custody and visitation issues, based upon a first-hand assessment of the credibility of the witnesses after an evidentiary hearing, is entitled to great weight and will […]
The Fourth Department, over a dissent, affirmed Family Court’s termination of mother’s parental rights. The dissent argued that the misdiagnosis of both the mother’s and child’s psychological conditions rendered the efforts to reunite the mother with the child inadequate. The Fourth Department wrote: Contrary to the contention of the mother, Family Court properly determined that […]
The Third Department reversed Supreme Court’s striking of defendant’s answer as a penalty for defendant’s not appearing at a pre-trial conference as ordered: Generally speaking, and based upon sound underlying policy, there is a strong judicial preference for determination of issues upon the merits …. Consistent with this policy, defendant’s failure to comply with the […]
The Third Department affirmed the dismissal of plaintiff’s civil rights complaint based upon a release signed by the plaintiff. The court determined that plaintiff’s allegations did not create a question of fact about whether the release was the product of duress. The relevant legal principles, including the principle that contracts signed under duress are voidable, […]
The Third Department affirmed the denial of summary judgment in a case where plaintiff was injured by defendant’s horse. Plaintiff was knocked unconscious when defendant’s horse “head swatted” him. The Third Department determined the deposition testimony of a neighbor raised a question of fact about whether defendant was aware of the horse’s aggressive behavior. The […]
In a full-fledged opinion by Justice Spain, the Third Department determined the Medical Treatment Guidelines created pursuant to Workers’ Compensation Law section 13-a (5) were valid and enforceable. The Guidelines were adopted as the standard of care for all medical treatment for workplace injuries rendered on or after December 1, 2010, relating to injuries to […]
The Second Department, in an Article 78 proceeding, explained the review criteria where there has been a disability hearing (re: a firefighter) held by a municipality pursuant to General Municipal Law 207-a: Judicial review of an administrative determination made after a hearing required by law at which evidence is taken is limited to whether the […]
The Second Department determined a Labor Law 240(1) action should have been dismissed. As plaintiff was attempting to paint the ceiling while standing on a ladder, a portion of the ceiling fell, causing injury. In explaining why section 240 does not apply to the facts, the court wrote: Labor Law § 240(1) requires property owners […]
In a full-fledged opinion by Justice Leventhal, the Second Department determined a police officer who was injured when she fell off the back of a flat bed truck while loading police barricades could not sue in negligence (based on the firefighter rule) but could sue under General Municipal Law 205-e based on an alleged violation […]
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