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Entries by Bruce Freeman

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THE LABOR LAW DOES NOT PROVIDE A PRIVATE RIGHT OF ACTION ALLOWING A WORKER TO SUE FOR LIQUIDATED DAMAGES, PREJUDGMENT INTEREST, AND ATTORNEY’S FEES BECAUSE THE WORKER WAS PAID BIWEEKLY, NOT WEEKLY AS REQUIRED BY LABOR LAW 191 (SECOND DEPT).

The Second Department, disagreeing with the First Department, over a partial dissent, determined that Labor Law 191, entitled “Frequency of payments,” does not create a private right of action which would allow an employee, who was fully paid, to sue for liquidated damages, prejudgment interest and attorney’s fees because the employee was paid “biweekly,” not […]

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THE 2020 AMENDMENTS TO THE ANTI-SLAPP STATUTE DO NOT APPLY AS A DEFENSE TO THIS DEFAMATION ACTION BASED UPON DEFENDANTS’ CRITICISM OF PLAINTIFF DOG-GROOMER POSTED ON SOCIAL MEDIA (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Dillon, in a matter of first impression in the Second Department, determined the 2020 anti-SLAPP amendments, which expanded the scope of the statute to some defamatory statements made on social media, did not apply retroactively. Therefore the defendants in the defamation action (the Sproules) were not […]

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THE POLICE HAD ENOUGH CAUSE FOR A LEVEL TWO INQUIRY BUT DID NOT HAVE REASONABLE SUSPICION OF CRIMINAL ACTIVITY AT THE TIME DEFENDANT WAS STOPPED, FRISKED AND BROUGHT TO THE GROUND (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the police did not have reasonable suspicion defendant was involved in a crime at the time defendant was stopped, grabbed and brought to the ground. The police were aware there had been 10 robberies in the area where the victims were punched or struck with objects. The arresting […]

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ALTHOUGH FATHER FILED A PETITION FOR CUSTODY AFTER GRANDMOTHER WAS AWARDED CUSTODY, FATHER’S APPEAL WAS NOT MOOT; THE JUDGE DID NOT MAKE AN ADEQUATE INQUIRY TO ENSURE FATHER’S WAIVER OF COUNSEL WAS KNOWING, VOLUNTARY AND INTELLIGENT (SECOND DEPT). ​

The Second Department, reversing Family Court, determined: (1) the fact that father filed a petition for custody after custody had been awarded to grandmother did not render father’s appeal of the custody-award to grandmother moot; (2) because the judge failed to make a searching inquiry, father did not effectively waive his right to counsel: “Once […]

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THE CONTRACT CALLED FOR LIQUIDATED DAMAGES AS THE “SOLE REMEDY” FOR BREACH; HOWEVER NOTHING IN THE CONTRACT LANGUAGE WAIVED THE NONBREACHING PARTY’S RIGHT TO PREJUDGMENT INTEREST PURSUANT TO CPLR 5001(A) (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Kapnick, reversing Supreme Court, determined the contract language, which provided that liquidated damages constituted the “sole remedy” for breach, did not waive the nonbreaching party’s  right to prejudgment interest pursuant to CPLR 5001 (a): At issue in this appeal is whether the parties’ contract language specifying […]

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THE ARBITRATION AWARD WAS “IRRATIONAL;” THE CORRECTIONS OFFICERS WERE TREATED ONLY ON THE DAY OF THEIR INJURIES, LOST NO WORK AND HAD NO OUT-OF-POCKET EXPENSES; THEY WERE NOT ENTITLED TO MEDICAL BENEFITS PURSUANT TO THE COLLECTIVE BARGAINING AGREEMENT (CBA) AND THE GENERAL MUNICIPAL LAW (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the arbitration award which found that the county corrections officers were entitled to medical benefits for work-related injuries pursuant to the collective bargaining agreement (CBA) and the General Municipal Law, was “irrational.” The officers were treated on the day of their injuries, received no further treatment, lost no work, and […]

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PURSUANT TO THE ALCOHOLIC BEVERAGE CONTROL LAW THE DEFENDANT BEER IMPORTER IS OBLIGATED TO HONOR THE WHOLESALE DISTRIBUTION CONTRACT ENTERED INTO BY PLAINTIFF AND THE PRIOR BEER IMPORTER (SECOND DEPT). ​

The Second Department, in a full-fledged opinion by Justice Chambers, reversing Supreme Court, in a matter of first impression, determined defendant beer importer was obligated, pursuant to Alcoholic Beverage Control Act section 55-c, to honor the wholesale distribution contract entered into by the plaintiff and the prior beer importer: We are asked on this appeal […]

PLAINTIFF WAS STRUCK BY A CABLE WHICH WHIPLASHED WHEN A TRUCK RAN INTO IT; THE INDUSTRIAL CODE PROVISION REQUIRING SAFETY MEASURES WHEN WORKING NEAR TRAFFIC APPLIED; THE LABOR LAW 241(6) CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined the Labor Law 241(6) cause of action should not have been dismissed. Plaintiff was injured when a truck struck a cable which whiplashed and struck plaintiff. It was alleged Industrial Code section 12 NYCRR 23-1.29(a) was violated. That Code provision reads: “Whenever any construction, demolition or excavation […]

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PLAINTIFF FELL THROUGH THE DECK OF HER APRARTMENT; DEFENDANTS DID NOT SHOW A LACK OF ACTUAL OR CONSTRUCTIVE NOTICE; THERE WAS NO CERTIFICATE OF OCCUPANCY ON FILE; THERE WAS A QUESTION OF FACT WHETHER THE DOCTRINE OF RES IPSA LOQUITUR APPLIED (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant-landlord did not demonstrate a lack of actual or constructive notice of the condition of the deck which plaintiff fell through. In addition there was a question of fact whether the doctrine of res ipsa loquitur applied: Defendants testified that they inspected the deck before purchasing the property […]

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THE DRUGS IN DEFENDANT’S CAR MAY NOT HAVE BEEN IN “PLAIN VIEW” IF THE POLICE HAD NOT ILLEGALLY DETAINED DEFENDANT OUTSIDE THE CAR BEFORE LOOKING INSIDE THE CAR; SUPPRESSION GRANTED AND INDICTMENT DISMISSED; THREE-JUDGE DISSENT (CT APP).

The Court of Appeals, reversing the Appellate Division and dismissing the indictment, over a three-judge dissent, determined defendant’s motion to suppress evidence seized from his car should have been granted. The proof at the suppression hearing demonstrated the police observed innocent behavior in a parking lot which which was interpreted to be a drug transaction. […]

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