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Entries by Bruce Freeman

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DISAGREEING WITH THE FIRST DEPARTMENT, THE SECOND DEPARTMENT HELD THAT DAMAGES FOR “PRE-IMPACT TERROR” ARE NOT APPROPRIATE IN A MED MAL CASE; HERE PLAINTIFF SUFFERED A HEART ATTACK IN 2008 AND DIED IN 2011 (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court in the med mal case, in a full-fledged opinion by Justice Maltese, determined the damages for “pre-impact terror” were not appropriate. Plaintiff suffered a heart attack in 2008 and died in 2011: … [P]re-impact terror delineated as emotional pain and suffering as a separate item of damages is […]

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QUESTIONS OF FACT WHETHER DEFENDANT WAS AN OUT-OF-POSSESSION LANDLORD PRECLUDED SUMMARY JUDGMENT IN FAVOR OF THE LANDLORD IN THIS SLIP AND FALL CASE (SECOND DEPT). ​

The Second Department, reversing Supreme Court in this slip and fall case, determined there were questions of fact whether the landlord was an out-of-possession landlord: “A property owner has a duty to maintain its premises in a reasonably safe condition” … . “That duty is premised on the landowner’s exercise of control over the property, […]

DEFENDANT PROPERTY-OWNER HAD ACTUAL KNOWLEDGE OF THE RECURRING RAINWATER LEAKS; PLAINTIFF ENTITLED TO SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment in this slip and fall case: … Karen Myers [was] the defendants’ supervisor caretaker assigned to the subject building. At her deposition, the plaintiff testified that, while walking in the hallway of the floor that she resided on, she slipped as a […]

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THE DENTISTS’ FEE-SPLITTING AGREEMENT VIOLATED THE EDUCATION LAW; A COURT WILL NOT ENFORCE AN ILLEGAL CONTRACT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the complaint seeking to enforce an illegal contract should have been dismissed: … [T]he plaintiff entered into an asset purchase agreement (hereinafter the APA) to sell certain assets of its dental practice to the defendant, a licensed dentist who retained his own separate practice. The APA specified a […]

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THE REGULATION WHICH PROVIDES THAT THE TRANSCRIPTS OF PUBLIC EMPLOYMENT RELATIONS BOARD (PERB) HEARINGS ARE THE PROPERTY OF THE STENOGRAPHER CONFLICTS WITH THE ADMINISTRATIVE PROCEDURE ACT AND THE PUBLIC-ACCESS PRINCIPLES UNDERLYING FOIL (THIRD DEPT). ​

The Third Department, reversing (modifying) Supreme Court, determined the Public Employment Relations Board (PERB) regulation (4 NYCRR 208.3 (c)) which provides that PERB hearing transcripts are the property of the stenographer conflicts with the Administrative Procedure Act and the public-access principles underlying FOIL: “It is established as a general proposition that a regulation cannot be […]

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WITH THE EXCEPTION OF THE FRAUD CAUSE OF ACTION, THE NONRECOURSE CLAUSE PRECLUDED THIS LAWSUIT AGAINST THE PRINCIPALS OF DEFENDANT CORPORATION; PLAINTIFF HAD WON AN ARBITRATION AWARD AGAINST DEFENDANT FOR OVER $200 MILLION AND BROUGHT THIS ACTION AFTER DEFENDANT FILED FOR BANKRUPTCY (FIRST DEPT). ​

The First Department, in a full-fledged opinion by Justice Higgitt, determined the nonrecourse clause in the contract between two sophisticated, commercial parties precluded plaintiff’s action. Plaintiff had won an arbitration award for over $200 million against defendant (Footprint) and this suit against Footprint’s principals was brought after Footprint filed for bankruptcy: Plaintiff, a sophisticated commercial […]

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FAMILY COURT HAD THE AUTHORITY TO ORDER VISITATION WITH THE CHILDREN’S FORMER FOSTER MOTHER; A STRONG DISSENT ARGUED THE COURT DID NOT HAVE THE POWER TO ORDER VISITATION WITH A “LEGAL STRANGER” (FIRST DEPT). ​

The First Department, over an extensive and comprehensive dissent, determined Family Court properly allowed visitation with the children by their former foster mother. The dissent argued the court did not have the power to order visitation with the former foster mother, a “legal stranger:” Commonly, visitation plans for children in foster care involve parents, grandparents […]

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PLAINTIFF, UNDER NEW JERSEY LAW, SUFFICIENTLY PLED A SPECIAL RELATIONSHIP WITH DEFENDANT BANK GIVING RISE TO A DUTY TO ENFORCE ITS ANTI-FRAUD PROCEDURES; PLAINTIFF WIRED $300,000 TO AN ACCOUNT WHICH HAD BEEN SET UP TO DEFRAUD PLAINTIFF (FIRST DEPT).

The First Department, over a comprehensive dissent, determined defendant JPMorgan Chase Bank owed a duty to plaintiff based upon its anti-fraud polices advertised on the bank’s website. Defendant David Tate opened an account at a New Jersey Chase bank in the name of his business, Alchemy. Tate did not provide any personal identification or any […]

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IT WAS REVERSIBLE ERROR TO EMPANEL AN ANONYMOUS JURY; ALTHOUGH THE ERROR WAS NOT PRESERVED, NEW TRIAL GRANTED IN THE INTEREST OF JUSTICE (THIRD DEPT).

The Third Department, reversing defendant’s assault-related convictions and ordering a new trial, determined it was error to empanel an anonymous jury: … [C]onsistent with our recent holding in People v Heidrich (226 AD3d 1096 [3d Dept 2024]), we find merit to defendant’s contention that County Court’s empaneling of an anonymous jury in his case was in error. […]

PETITIONER, A POLICE PARAMEDIC, INJURED HIS SHOULDER WHEN THE RETRACTABLE PORTION OF A STRETCHER JAMMED; THE UNEXPECTED EQUIPMENT MALFUNCTION WAS AN “ACCIDENT” ENTITLING PETITIONER TO ACCIDENTAL DISABILITY RETIREMENT BENEFITS (THIRD DEPT).

The Third Department, over a partial concurrence and dissent, determined petitioner, a police paramedic, was entitled to accidental disability retirement benefits based on an injury caused by the malfunction of the retractable portion of a stretcher: For purposes of accidental disability retirement benefits, “an accident is defined as ‘a sudden, fortuitous mischance, unexpected, out of […]

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