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DEFAMATORY STATEMENTS RELATING TO ISSUES OF BROAD PUBLIC INTEREST POSTED ON FACEBOOK MAY BE ENCOMPASSED BY THE ANTI-SLAPP STATUTE; HERE, HOWEVER, THE STATEMENTS (ALLEGATIONS OF SEXUAL ABUSE) RELATED TO A PURELY PRIVATE MATTER AND, THEREFORE, WERE NOT ENCOMPASSED BY THE STATUTE (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Love, determined (1) Facebook is a “public forum” within the meaning of the anti-SLAPP statute, and (2) the allegedly defamatory statements defendants posted on Facebook involved a “purely private matter,” not an issue of broad public interest, and therefore was not encompassed aby the anti-SLAPP statute. […]

PLAINTIFF, AN INNOCENT PASSENGER IN THIS TRAFFIC ACCIDENT CASE, WAS ENTITLED TO SUMMARY JUDGMENT DISMISSSING DEFENDANT’S AFFIRMATIVE DEFENSES AS AGAINST HER (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined that plaintiff (Brizan), a passenger in a car involved in an accident, was entitled to summary judgment dismissing defendant’s affirmative defenses alleging comparative negligence, contributory negligence and culpable conduct on Brizan’s part: The right of an innocent passenger to summary judgment on the issue of whether he […]

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CLAIMANT FELL ATTEMPTING TO MOVE FROM AN UPPER WALKWAY TO A LOWER WALKWAY; CLAIMANT WAS ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) AND LABOR LAW 241(6) CAUSES OF ACTION (SECOND DEPT).

The Second Department, reversing the Court of Claims, determined claimant construction-worker’s motions for summary judgment pursuant to Labor Law 240(1) and Labor Law 241(6) should have been granted. Claimant was attempting to move from a walkway on one level to a walkway on a lower level when the handrail swung away from him, the walkway […]

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IN A MED MAL CASE, AN EXPERT AFFIDAVIT WHICH MAKES ASSERTIONS UNSUPPORTED AND BELIED BY THE RECORD AND, FOR THE FIRST TIME, ASSERTS ISSUES NOT ENCOMPASSED BY THE COMPLAINT OR BILL OF PARTICULARS, DOES NOT RAISE A QUESTION OF FACT (FIRST DEPT).

The First Department, reversing Supreme Court, in a full-fledged opinion by Justice Mendez, determined the plaintiffs’ expert did not raise a question of fact on whether the defendants (the Golden defendants) met the appropriate standard of care in this medical malpractice action: Opinion evidence must be based on facts in the record. An expert cannot […]

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THE JUDGE SHOULD HAVE DECLARED A MISTRIAL AFTER THE JURY’S REPEATED COMMUNICATIONS EXPLAINING THEY COULD NOT REACH A UNANIMOUS VERDICT; NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing defendant’s conviction and ordering a new trial, determined the judge should have ordered a mistrial after the jury’s repeated communications stating they could not reach a unanimous verdict: The jury sent its third note regarding deadlock on the fourth day of deliberations, which not only stated that the jurors were “hopelessly […]

THE NEWSPAPER’S FOIL REQUEST FOR POLICE DISCIPLINARY RECORDS, INCLUDING RECORDS OF UNSUBSTANTIATED ALLEGATIONS AND RECORDS CREATED BEFORE THE REPEAL OF CIVIL RIGHTS LAW 50-A, SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined petitioner-newspaper’s FOIL request for police disciplinary records, including records of allegations ruled unsubstantiated and records created before the repeal of Civil Rights Law 50-a, should have been granted: … [T]he Supreme Court erred in concluding that the privacy exemption under Public Officers Law § 87(2)(b) creates a blanket […]

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THE BANK DID NOT DEMONSTRATE IT WAS THE HOLDER OR ASSIGNEE OF THE NOTE AT THE TIME THE ACTION TO RECORD THE MORTGAGE WAS BROUGHT; THE BANK DID NOT HAVE STANDING TO BRING THE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank did not demonstrate standing in 2017 to record a mortgage securing a note issued in 2008: A plaintiff has standing where it is the holder or assignee of the underlying note at the time the action is commenced … . “Either a written assignment of the […]

ALTHOUGH PLAINTIFF FAILED TO TIE OFF HIS LANYARD, THAT FAILURE WAS NOT THE SOLE PROXIMATE CAUSE OF HIS INJURY; PLAINTIFF FELL WHEN A PLANK ON THE SCAFFOLD BROKE; PLAINTIFF SHOULD HAVE BEEN AWARDED SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on the Labor Law 240(1) cause of action. Plaintiff was wearing a safety harness with a lanyard when a coworker asked for help in securing the scaffold to the wall. Plaintiff was not able to hook his lanyard to the scaffold because […]

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IN THIS SLIP AND FALL CASE, THERE IS A QUESTION OF FACT WHETHER THE MUNICIPALITY OWED A DUTY TO PLAINTIFF BASED UPON THE MUNICIPALITY’S LAUNCHING AN INSTRUMENT OF HARM; IT WAS ALLEGED THAT SALT APPLIED TO MELT ICE CREATED A POOL OF WATER WHICH FROZE AND CAUSED PLAINTIFF’S FALL (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined there was a question of fact whether the municipality, which had contracted with the school district to provide salting services, owed plaintiff a duty based upon the municipality’s launching an instrument of harm. It was alleged the defendant municipality’s use of salt to melt ice resulted in […]

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A WITNESS IS NOT UNAVAILABLE TO TESTIFY AT A TRIAL BASED UPON THE FEAR OF COMMITTING PERJURY DURING THAT TRIAL; NEW TRIAL ORDERED (FOURTH DEPT).

The Fourth Department, reversing the judgment and ordering a new trial, determined a witness was not be unavailable to testify at the trial based upon her fear she would commit perjury at the trial: “A witness may not claim the privilege of the [F]ifth [A]mendment out of fear that he [or she] will be prosecuted […]

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