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Entries by Bruce Freeman

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HERE A STIPULATION BETWEEN LANDLORD AND TENANT SETTING THE RENT FOR A RENT STABILIZED LEASE VIOLATED THE RENT STABILIZATION LAW (RSL) RENDERING THE STIPULATION VOID (CT APP).

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Halligan, determined “an agreement waiving a benefit of the Rent Stabilization Laws is void as against public policy. This rule is not altered by the tenant’s status. Accordingly, the stipulation at issue here, which required the tenant to waive his right […]

SCHOOL DISTRICTS ARE NOT OBLIGATED TO TRANSPORT CHILDREN TO THEIR PRIVATE SCHOOLS WHEN THE PUBLIC SCHOOLS ARE CLOSED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Garcia, determined a school district is not required to transport children to their private schools when the public schools are closed: Education Law § 3635 (1) (a) provides: “Sufficient transportation facilities (including the operation and maintenance of motor vehicles) shall be provided by the school […]

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THE “ESSENTIAL ELEMENTS” TEST SHOULD BE USED TO DETERMINE WHETHER AN OUT-OF-STATE NON-SEXUAL CONVICTION CAN BE USED TO ASSESS RISK-LEVEL POINTS UNDER SORA (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Clark, determined the “essential elements” test must be used to determine whether a defendant should be assessed risk-level points for non-sexual offenses committed out-of-state. Defendant relocated to New York and was subject to a SORA risk-level assessment based upon a Washington child molestation conviction. Defendant had […]

THE COURT OF APPEALS MAJORITY HELD THE APPELLATE DIVISION AND THE DISSENT WENT TOO FAR BY INTERPRETING A SHORT PHRASE WITH GRAMMATICAL AND SPELLING ERRORS TO HAVE AMENDED THE TERM OF THE CONTRACT, WHICH WAS UNAMBIGUOUS (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Cannataro, reversing the Appellate Division, over a three-judge dissenting opinion, determined a short unintelligible phrase in the contract did not render the contract ambiguous and therefore did not allow the interpretation applied by the Appellate Division. The central issue was the term of the contract. […]

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THE PUBLIC HEALTH LAW REGULATIONS CONTROLLING HOW NURSING HOMES MUST ALLOCATE THEIR INCOME AND HOW MUCH PROFIT THEY CAN MAKE WERE DEEMED CONSTITUTIONAL TO THE EXTENT THEY WERE RIPE FOR CONSTITUTIONAL REVIEW (THIRD DEPT).

The Third Department, in a comprehensive full-fledged opinion by Justice Mackey too detailed to fairly summarize here, determined the Public Health Law regulations controlling how nursing homes must allocate their income and how much profit they can make are constitutional to the extent they are ripe for constitutional review: On November 17, 2022, the [Public […]

IT WAS FORSEEABLE THAT A LEAKY ROOF NEEDING REPAIR WOULD COLLAPSE WHEN PLAINTIFF WAS STANDING ON IT; PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff, who fell when the roof he was working on collapsed, was entitled to summary judgment on his Labor Law 240(1) cause of action. The court noted the accident was foreseeable and no protective device was provided: “‘In order for liability to be imposed under Labor Law § […]

IF AN UNSECURED A-FRAME LADDER MOVES CAUSING PLAINTIFF TO FALL, PLAINTIFF IS ENTITLED TO 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 in this A-frame ladder-fall case. Plaintiff alleged the unsecured ladder moved causing him to fall: … [T]he plaintiff demonstrated his prima facie entitlement to judgment as a matter of law on the issue of […]

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IN MOVING TO VACATE A MORE THAN $2 MILLION DEFAULT JUDGMENT IN THIS MED MAL CASE, DEFENDANT DOCTOR RAISED A QUESTION OF FACT WHETHER SHE WAS EVER SERVED WITH PROCESS; A HEARING IS REQUIRED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined a hearing was required to determine whether defendant was properly served in this medical malpractice action. Defendant doctor never appeared and a default judgment of over $2 million had been entered: In order to warrant a hearing to determine the validity of service of process, the denial of […]

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A COUNTY MAY BE LIABLE FOR NEGLIGENT SUPERVSION OF A VISIT BETWEEN MOTHER AND CHILD BY A COUNTY SOCIAL SERVICES CASEWORKER AT A PUBLIC PARK; HERE THE CHILD FELL WALKING UP A SLIDE; THE CASEWORKER DID NOT OBSERVE THE ACCIDENT BUT MOTHER WAS NEXT TO THE SLIDE AT THE TIME (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Wooten, determined the county’s motion for summary judgment in this negligent supervision case was properly denied. Plaintiff father alleged the county social services caseworker (Byrne) who supervised a visit between mother and the infant plaintiff at a public playground was negligent in allowing the child to […]

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ALTHOUGH RESPONDENT SEX OFFENDER VIOLATED RULES IMPOSED BY THE “STRICT AND INTENSIVE SUPERVISION” (SIST) REGIMEN, HE DID NOT EXHIBIT ANY DANGEROUS SEXUAL BEHAVIOR; THEREFORE RESPONDENT SHOULD NOT HAVE BEEN CONFINED AND SHOULD BE RELEASED AND MANAGED UNDER “SIST” (FIRST DEPT).

The First Department, reversing Supreme Court, determined that, although respondent sex offender violated some of the rules associated with his released into the community, the violations were not related to sexual behavior. Therefore respondent should not be confined and should be released to the community and managed under SIST (strict and intensive supervision): It is […]

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