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Entries by Bruce Freeman

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ALTHOUGH THERE WAS NO QUESTION PLAINTIFF’S CAR HYDROPLANED AND SLID INTO DEFENDANT’S LANE, DEFENDANT INCLUDED PLAINTIFF’S DEPOSITION TESTIMONY IN HIS MOTION FOR SUMMARY JUDGMENT WHICH RAISED A QUESTION OF FACT ABOUT HOW LONG PLAINTIFF’S CAR WAS IN DEFENDANT’S LANE BEFORE IT WAS STRUCK (THIRD DEPT).

The Third Department, reversing Supreme Court, determined defendant’s own motion papers, which included the deposition testimony of plaintiffs, raised questions of fact about whether the emergency doctrine applied in this car accident case. Plaintiff testified her car hydroplaned on rain water and slid into the oncoming lane where her car was struck by defendant’s. Plaintiff […]

THE FAILURE TO TIMELY SERVE THE COUNTY TREASURER WITH THE PETITION SEEKING JUDICIAL REVIEW OF A PROPERTY TAX ASSESSMENT, A VIOLATION OF RPTL 708 (3), REQUIRED DISMISSAL OF THE PETITION (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the petitioners in this action seeking judicial review of a property tax assessment did not demonstrate good cause for failing to timely serve the county treasurer. The petition should have been dismissed: RPTL 708 (3) requires that “one copy of the petition and notice shall be mailed within […]

GENERAL OBLIGATIONS LAW 9-103 PROVIDES IMMUNITY FROM NEGLIGENCE SUITS STEMMING FROM AUTHORIZED RECREATIONAL USE OF THE OWNER’S PROPERTY, BUT DOES NOT PROVIDE IMMUNITY FOR ACTIONS OR OMISSIONS BY THE OWNER ALLEGED TO BE “WILLFUL OR MALICIOUS” (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, determined plaintiff mountain biker’s (Fleming’s) cause of action alleging defendants’ failure to properly maintain a wooden bridge on a trail was properly dismissed pursuant to General Obligations law section 9-103. But the cause of action alleging the negligent failure to maintain the bridge and the negligent failure to […]

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ALTHOUGH THE PHOTOGRAPH OF THE SIDEWALK DEFECT WAS TAKEN A YEAR BEFORE THE SLIP AND FALL, PLAINTIFF’S TESTIMONY THE PHOTO ACCURATELY AND FAIRLY DEPICTED THE CONDITION OF THE SIDEWALK AT THE TIME OF THE FALL WAS SUFFICIENT (FIRST DEPT). ​

The First Department, reversing Supreme Court’s denial of plaintiff’s summary judgment motion, determined the raised sidewalk flag which caused plaintiff’s slip and fall was sufficiently proven by a photograph taken a year before the accident because plaintiff testified the photo accurately depicted the condition of the sidewalk at the time of the accident: Plaintiff demonstrated […]

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INCARCERATED FATHER SHOULD NOT HAVE BEEN AWARDED IN-PERSON VISITATION WITH HIS SON ONCE EVERY SIX MONTHS; FATHER HAD STABBED MOTHER WHILE SHE WAS HOLDING THE CHILD AND FATHER HAD HARASSED MOTHER DURING PERMITTED PHONE CALLS (FIRST DEPT).

The First Department, reversing Family Court, determined the award of in-person visitation by the child with the incarcerated father once every six months was not supported by the record: Visitation with a noncustodial parent, including an incarcerated parent, is generally presumed to be in the best interests of the child … . However, that presumption […]

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UNDER THE CONSTITUTIONAL ERROR STANDARD, HEARSAY STATEMENTS ADMITTED IN THIS ATTEMPTED MURDER AND FIRST DEGREE ASSAULT TRIAL CONSTITUTED HARMLESS ERROR, CRITERIA EXPLAINED (CT APP).

The Court of Appeals, reversing the Appellate Division, determined the hearsay statements allowed in evidence in the attempted murder and assault first degree trial constituted harmless error: Before this Court, the parties primarily focus on whether the erroneous admission of testimony reflecting the daughter’s statements was harmless. Applying the standard for constitutional errors, we conclude […]

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THE COVID FORECLOSURE MORATORIUM INSTITUTED BY HUD FOR FHA INSURED MORTGAGES APPLIED TO RENDER THE REVERSE MORTGAGE FORECLOSURE IN THIS CASE TIMELY (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Miller, addressing a question of first impression, determined that the COVID foreclosure moratorium instituted by the US Department of Housing and Urban Development (HUD) which stayed foreclosures on mortgages issued by the Federal Housing Administration (FHA) applied to render an action to foreclose a reverse mortgage […]

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THERE IS A QUESTION OF FACT WHETHER PLAINTIFF’S SLIP AND FALL ON ICE AND SNOW AFTER GETTING OUT OF A VEHICLE RESULTED FROM OPERATION OF THE VEHICLE SUCH THAT THE INSURER IS OBLIGATED TO DEFEND THE OWNER OF THE VEHICLE (SECOND DEPT). ​

The Second Department, reversing Supreme Court, over a partial dissent, determined the insurer, Progressive, was obligated to defend the owner of a vehicle for injuries suffered by a passenger (Malone) who slipped and fell on ice and snow after getting out of the car. The question was whether the injury resulted from “operation” of the […]

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ABSENT SELF-INTEREST OR SELF-DEALING, AN ATTORNEY CAN NOT BE LIABLE TO A THIRD PERSON FOR INDUCING THE CLIENT TO BREACH A CONTRACT WITH THAT THIRD PERSON (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined that the attorney’s (Treco’s) inducing his client (Reynolds) to breach a contract with a third person is not actionable: “[I]nasmuch as the relationship created between an attorney and his [or her] client is that of principal and agent, an attorney is not liable for inducing his [or […]

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PLAINTIFF IN THIS CHILD VICTIMS ACT CASE RAISED A QUESTION OF FACT WHETHER DEFENDANT SUMMER CAMP WAS AWARE OR SHOULD HAVE BEEN AWARE OF ITS EMPLOYEE’S PROPENSITY FOR SEXUAL ABUSE; THE NEGLIGENT HIRING, RETENTION AND SUPERVISION CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT). ​

The Second Department, reversing Supreme Court in this Child Victims Act case alleging abuse at defendant’s summer camp in 1970, determined plaintiff had raised a question of fact supporting the negligent hiring, retention and supervision cause of action. Plaintiff alleged he informed defendant of the abuse by the employee (Puello): “Although an employer cannot be […]

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