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Entries by Bruce Freeman

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Events Before Last Custody Order Could Be Considered re: “Best Interests of Child” Even Though Only Post-Custody-Order Events Can Be Considered re: “Change of Circumstances”

In upholding Family Court’s custody ruling, the Third Department noted that events which occurred before the last custody order could be considered with respect to the best interests of the child:” Family Court did not err in considering evidence of events that occurred before the entry of the prior custody order. Although  the inquiry as […]

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Derivative Severe Abuse Finding Reversed

In reversing Family Court’s finding of derivative severe abuse, the Third Department explained the proof requirements as follows: …[W]e agree with respondent that Family Court erred in concluding  that Nicholas and  Carolina were derivatively severely abused by respondent. As the Court of Appeals recently clarified in Matter of Dashawn W. (21 NY3d 36 [2013]), a […]

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Theories Not Included in Notice of Claim Precluded

In a slip and fall case, the First Department precluded plaintiff from asserting theories of liability not in the notice of claim: The notice of claim limited plaintiffs’ theory of liability to negligent maintenance, upkeep and repair of the subject staircase, asserting that the infant plaintiff was caused to slip and fall due to a […]

Voluntary Participation in Fight Precludes Suit Alleging Inadequate Building Security

The First Department determined that plaintiff’s voluntary participation in a fight severed any causal connection between his injuries and the defendant building owner’s and defendant building manager’s alleged failure to keep the premises safe: Courts in all four judicial departments have found that one who voluntarily participates in a physical fight cannot recover from a […]

Parole Board Could Require No-Contact-with-Wife for One Year as a Condition

In upholding the Board of Parole’s determination that, as a condition of release on parole, petitioner, who had attacked his wife in the past, must refrain from any contact with his wife for one year and complete a domestic violence offenders program, the Third Department wrote: …[T]the Board is vested with discretion to determine the […]

Board’s Determination Business Was Claimant’s “Employer” Reversed

In reversing the Unemployment Insurance Appeal Board’s determination that “Quick Change” was claimant’s employer and therefore was liable for contributions to unemployment benefits, the Third Department noted: Here, Quick Change did not screen claimant but, rather, retained his services based upon his reputation in the industry. Claimant was  free to accept or reject an  assignment […]

Benefits Awarded for Psychic Injury (Stress) Affirmed

The Third Department affirmed an award of Workers’ Compensation benefits based on psychic injury (stress).  Due an audit of the travel reimbursement policies of the employer, the employee (claimant) was required to pay taxes on “income” of $100,000 (the reason for the employee’s psychic injury).  The Third Department explained the analytical factors as follows: A […]

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The Term “Casualty” In Lease Covered Flooding Due to Malfunctioning HVAC System

The First Department determined Supreme Court should have denied plaintiff’s motion for summary judgment. Plaintiff was the owner and landlord of a building and defendant was a commercial tenant.  Section 7.04 of the lease stated: “each party releases the other with respect to any claim (including a claim for negligence) which it might otherwise have […]

“Grouping of Contacts” Analysis to Determine Which State’s Law Applies

The First Department noted Supreme Court correctly applied the “grouping of contacts” analysis in determining whether New York or Maryland law applied in an action to determine which insurance company was required to defend and indemnify.  The First Department further noted that late notice to the carrier because of the need to investigate did not […]

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