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Entries by Bruce Freeman

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No Demonstration Burst Water Pipe Could Have Been the Result of Negligent Inspection or Maintenance; Municipality Immune from Negligent Design

In affirming Supreme Court’s grant of summary judgment to the defendant town with respect to damages allegedly caused by a burst storm water pipe, the Second Department determined plaintiffs did not raise a question of fact concerning negligent inspection or maintenance: “A municipality is immune from liability arising out of claims that it negligently designed […]

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Proof of Regular Cleaning Negated Constructive Notice Allegation​

In determining the defendant’s motion for summary judgment in a slip and fall case should have been granted, the Second Department explained defendant had met its burden on the issue of (the absence of) constructive notice by proof of regular weekly cleaning: In a slip-and-fall case, a defendant moving for summary judgment has the initial […]

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Exclusion of Petitioner from Hearing During Testimony of Primary Witness Required Vacation of Award

The exclusion of petitioner from an administrative hearing during the testimony of the only eyewitness to an alleged assault by petitioner required vacation of the arbitrator’s award.  The First Department wrote: Petitioner’s exclusion from the administrative hearing during the testimony of the only eyewitness to her alleged hitting of a student—the student himself—violated her constitutional […]

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Whether the “Assault and Battery” Exclusion from Coverage Pertained to an Arson Is a Question of Fact Which Depends Upon the Motives of the Arsonist

A fire in plaintiff’s building left several people dead or injured.  A person was arrested and charged with arson in connection with the fire. The plaintiff brought a declaratory judgment action to determine whether the defendant insurance company was required to defend and indemnify plaintiff.  The main issue was whether the policy exclusion of damages […]

Action for Contingency Fee; No Demonstration Law Firm Had Been Discharged

The plaintiff law firm brought breach of contract cause of action to recover contingency fees under a written retainer agreement.  The motion court granted defendant’s motion to dismiss on the ground the law firm had been discharged.  In reversing the motion court, the First Department wrote: Although no particular formality is required, the discharge of […]

Assumption of Risk Extends to Condition of Outside Basketball Court

The First Department affirmed the grant of summary judgment to the defendant finding that the plaintiff basketball player assumed the risks associated with playing basketball on defendant’s outdoor court: Plaintiff, an experienced basketball player who had played on the subject court on numerous occasions, was injured when, while heading toward the rim to take a […]

Adverse Possession Not Demonstrated

In reversing the adverse-possession ruling in favor of the plaintiffs, because the proof showed only non-exclusive, sporadic and incomplete use of the land, the Third Department wrote: …[W]e conclude that plaintiffs’ vague testimony did not establish by clear and convincing evidence that they ever cultivated and improved the entire .17 acre of the disputed area, […]

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