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Entries by Bruce Freeman

DEFENDANT IN THIS LADDER-FALL CASE RAISED A QUESTION OF FACT WHETHER PLAINTIFF MISSED A STEP AND WAS THEREFORE THE SOLE PROXIMATE CAUSE OF THE FALL; A TWO-JUSTICE DISSENT DISAGREED (FOURTH DEPT).

The Fourth Department determined defendant in this ladder-fall case raised a question of fact whether plaintiff was the sole proximate cause of his fall. The two-justice dissent disagreed: We conclude that plaintiff met his initial burden on the motion of establishing that the ladder was “not so placed . . . as to give proper […]

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FORMER AND CURRENT SECTION 413 OF THE SOCIAL SERVICES LAW REQUIRES THE REPORTING OF ANY SUSPECTED INTENTIONAL INFLICTION OF SERIOUS PHYSICAL INJURY UPON A CHILD, WHICH INCLUDES SEXUAL ABUSE, EVEN WHEN THE PERSON SUSPECTED OF THE ABUSE IS NOT LEGALLY RESPONSIBLE FOR THE CARE OF THE CHILD; TWO JUSTICE DISSENT (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, determined former section 413 of Social Services Law, as the current section mandates, requires that all instances of suspected intentionally inflicted serious injury upon a child be reported, regardless of who is suspected of inflicting it. In other words, the suspected intentional infliction of serious injury upon a […]

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PROOF OF THE VALUE OF STOLEN PROPERTY WAS INSUFFICIENT; CONVICTION REDUCED IN THE INTEREST OF JUSTICE (FOURTH DEPT).

The Fourth Department, reducing defendant’s possession-of-stolen-property conviction, determined the value of the property was not established: We agree with defendant that, with respect to his conviction of criminal possession of stolen property in the third degree under count 1 of the indictment, there is legally insufficient evidence establishing the value of the items seized from […]

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FAMILY COURT SHOULD NOT HAVE SUSPENDED FATHER’S VISITATION WITHOUT MAKING FINDINGS OF FACT, MATTER REMITTED (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined Family Court should not have suspended father’s visitation without making findings of fact: The father … contends that the court failed to make any factual findings whatsoever to support the determination to suspend the father’s visitation with the child, and that the matter should be remitted to allow […]

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THE MEDICAL MALPRACTICE ACTION AGAINST THE RESIDENT WHO PERFORMED THE SURGERY UNDER THE SUPERVISION OF ANOTHER SURGEON SHOULD HAVE BEEN DISMISSED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the medical malpractice action against the resident who performed the surgery (Kent) should have been dismissed because the resident was acting under the supervision of another surgeon (Doak): With respect to the appeal by Kent and the Kaleida Health defendants, we conclude that Supreme Court erred in denying […]

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ALTHOUGH PLAINTIFF WAS AWARDED SUMMARY JUDGMENT IN THIS QUANTUM MERUIT CASE. DEFENDANT DID NOT WAIVE A JURY TRIAL AND WAS THEREFORE ENTITLED TO A JURY TRIAL ON DAMAGES; BENCH-TRIAL VERDICT REVERSED (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined defendant never waived a jury trial in this quantum-meruit action. Therefore, although plaintiff was granted summary judgment, defendant was entitled to a jury trial on damages: … [T]he order awarding damages must be reversed, and the judgment vacated … . Upon granting plaintiff summary judgment for liability […]

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WHEN DEFENDANT MADE STATEMENTS AT THE TIME OF THE PLEA WHICH RAISED A POSSIBLE INTOXICATION DEFENSE THE JUDGE SHOULD HAVE INQUIRED FURTHER; THE ISSUE NEEDN’T BE PRESERVED FOR APPEAL (FIRST DEPT).

The First Department, vacating defendant’s guilty plea, determined the defendant’s statement at the time of the plea raised questions the judge should have explored. A narrow exception to the preservation requirement applies here: The narrow exception to the preservation requirement applies in this “rare case” where defendant made statements that cast doubt upon his guilt […]

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THE JUDGE SHOULD NOT HAVE REJECTED PLAINTIFF’S EXPERT’S OPINION BECAUSE SHE WAS A REGISTERED NURSE, NOT A DOCTOR; THE REGISTERED NURSE WAS QUALIFIED TO OFFER AN OPINION ON FALL PREVENTION; AN EXPERT’S QUALIFICATIONS SPEAK TO THE WEIGHT OF THE OPINION EVIDENCE, NOT ADMISSIBILITY (FIRST DEPT).

The First Department, reversing Supreme Court, determined the evidence submitted by plaintiff’s expert, a registered nurse, should not have been rejected because she was not a physician. Plaintiff’s decedent was a nursing-home patient with dementia who fell. The registered nurse was qualified to offer opinion evidence about measures to prevent elderly patients from falling: Supreme […]

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ALTHOUGH PLAINTIFF MADE OUT A PRIMA FACIE CASE IN THIS LABOR LAW 240(1) LADDER-FALL ACTION, DEFENDANTS RAISED TRIABLE ISSUES OF FACT BY POINTING TO INCONSISTENCIES IN PLAINTIFF’S ACCOUNT (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendants were able to raise triable issues of fact in this ladder-fall Labor Law 240(1) cause by pointing to inconsistencies in the plaintiff’s version of events: Plaintiff was allegedly injured while removing and replacing bricks on a building at a construction site. At his deposition, plaintiff testified that […]

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PLAINTIFF’S ALLOWING HIS ATTACKER INTO HIS APARTMENT WAS AN INTERVENING ACT AND A SUPERSEDING PROXIMATE CAUSE WHICH RELIEVED THE BUILDING DEFENDANTS OF ANY LIABILITY FOR LAPSES IN SECURITY (FIRST DEPT).

The First Department, reversing Supreme Court, determined that there was evidence building security was lax, but plaintiff’s allowing the attacker, whom plaintiff knew, into to plaintiff’s apartment was an intervening act relieving the building defendants from liability: Plaintiff, a psychiatrist, was conducting a patient session in his home office when Jacob Nolan, the cousin of […]

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