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Entries by Bruce Freeman

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Acquittal on Assault Charges in First Trial Did Not Preclude Presentation of Evidence of the Assaults in Second Trial—Collateral Estoppel Doctrine Could Not Be Successfully Invoked Because the Meaning of the Acquittals Was Nearly Impossible to Discern

In a second trial, the defendant moved to preclude the prosecution from introducing evidence of two assaults which were the subjects of acquittals in the first trial.  The trial court allowed evidence of the two assaults.  On appeal the defendant argued that evidence of the assaults of which she was acquitted was precluded by the […]

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Dismissal as Time-Barred Is a Dismissal On the Merits for Purposes of Res Judicata

In an article 78 action challenging the prohibition (by the Buffalo Fiscal Stability Authority) of the implementation of a wage increase pursuant to a collective bargaining agreement, the Fourth Department noted that the dismissal of an action as time-barred is a determination on the merits for res judicata purposes:  “It is well established that a […]

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In Lead Paint Exposure Case, Court’s Order to Provide Medical Report Linking Injuries to Exposure Before Depositions Upheld

In a case which alleged plaintiff was injured by lead paint exposure, Supreme Court ordered plaintiff, as part of discovery, to produce a medical report linking the injuries to lead exposure before depositions.  The Fourth Department affirmed over a dissent which argued plaintiff was improperly being forced to hire an expert at the very outset […]

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Jurisdiction Was Gained Over Out-of State Manufacturer Under Two Provisions of CPLR 302

Plaintiff was injured when he fell from a tree stand made by an out-of-state manufacturer and distributed in New York through Dick’s Sporting Goods.  In denying defendant’s motion to dismiss for lack of jurisdiction, the Fourth Department outlined the statutory and due process requirements for good service upon a foreign corporation under CPLR 302.  The […]

E-Mail Service to Defendant Living in Iran Deemed Valid

The Fourth Department held that service by e-mail upon the defendant in a matrimonial action was valid.  The defendant was living in Iran and the trial judge (Supreme Court, Monroe County, Dollinger, J.) ordered that service be accomplished by e-mail pursuant to CPLR 308 (5).  The Fourth Department wrote: “CPLR 308 (5) vests a court […]

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Conclusory Allegations of Customer Confusion Insufficient to Defeat Motion for Summary Judgment

In reversing the motion court’s grant of summary judgment to the plaintiff in an unfair competition action, the Fourth Department determined that conclusory allegations of customer confusion or mistake in plaintiff’s affidavit were not sufficient, and the exhibits attached to the affidavit to demonstrate customer confusion were not admissible under the business records exception to […]

Injury When Stepping Off a Ladder Not Actionable under Labor Law 240(1)—Injury Not Related to the Need for the Ladder

Plaintiff was injured when he stepped from a ladder onto a hose and grain dust.  The Fourth Department determined Supreme Court erred when it denied summary judgment to the defendant in a Labor Law 240 (1) action because “plaintiff’s injury resulted from a separate hazard wholly unrelated to the danger that brought about the need […]

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Criteria for Appellate Review of Arbitrator’s Award 

The Fourth Department explained the criteria for review of an arbitrator’s award (which involved the writing of a collective bargaining agreement) as follows: Respondents failed to meet their “heavy burden of demonstrating that the arbitrator[s’] award is . . . totally irrational or clearly exceeds a specifically enumerated limitation on the arbitrator’s power” … . […]

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