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Entries by Bruce Freeman

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THE JUDGE DID NOT INCLUDE FINDINGS OF FACT IN THE SORA RISK-ASSESSMENT ORDER; THE ATTORNEY GENERAL WAS NOT NOTIFIED OF DEFENDANT’S CONSTITUTIONAL ARGUMENTS; ORDER REVERSED (THIRD DEPT).

The Third Department, reversing County Court, determined County Court’s order failed to included the required findings of fact. In addition, the Attorney General should have been notified of defendant’s constitutional arguments: County Court’s order failed to set forth its findings of fact and conclusions of law as required by Correction Law § 168-n (3). The […]

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THE DENIAL OF PETITIONER-INMATE’S RIGHT TO CALL WITNESSES REQUIRED ANNULMENT OF ONE MISBEHAVIOR DETERMINATION AND EXPUNGEMENT OF ANOTHER (THIRD DEPT).

The Third Department annulled one misbehavior determination and expunged another because petitioner was denied his right to call witnesses: … [The Hearing Officer improperly denied petitioner’s request to call as a witness one of the correction officers who was present during the search of petitioner’s cell and endorsed the second misbehavior report (see 7 NYCRR […]

AN ESCAPE LADDER BOLTED TO THE CEILING OF A PERSONNEL HOIST DETACHED AND FELL ON PLAINTIFF; PLAITIFF WAS ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment in this Labor Law 240(1) action should have been granted. Plaintiff was in a personnel hoist when an escape ladder bolted to the ceiling detached and fell on him: The injured plaintiff … demonstrated that the access ladder “required securing for the purposes […]

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IN A REAR-END COLLISION CASE, DEFENDANT’S ALLEGATION PLAINTIFF STOPPED SUDDENLY DOES NOT RAISE A QUESTION OF FACT (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment in this rear-end traffic accident cause should have been granted. Defendant’s allegation plaintiff stopped suddenly did not raise a question of fact: It is well established that a rear-end collision with a slowing or stopping vehicle establishes a prima facie case of negligence […]

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THE RIGHT TO SEEK REMOVAL OF A CLOUD ON TITLE IS NEVER BARRED BY A STATUTE OF LIMITATIONS (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the causes of action which sought to remove a cloud on title should not have been dismissed as time-barred because the right to that relief is never barred by a statute of limitations: Supreme Court erred in granting those branches of the defendants’ motion which were pursuant to […]

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ONLY CONTRACTORS AND OWNERS AND THEIR AGENTS CAN BE LIABLE UNDER LABOR LAW 240(1) AND 241(6); HERE DEFENDANT DEMONSTRATED IT WAS NOT AN AGENT FOR ANY POTENTIALLY LIABLE PARTY BECAUSE IT EXERCISED NO SUPERVISORY CONTROL OVER THE WORKSITE (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the Labor Law 240(1) and 241(6) causes of action against one defendant (G Buddy) should have been dismissed because G Buddy had no control or supervisory duties at the worksite: The express terms of Labor Law §§ 240 and 241(6) provide that “the nondelegable duties imposed by […]

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A DEEDED EASEMENT CAN ONLY BE CREATED WHEN THE GRANTOR OWNS THE DOMINANT AND SERVIENT PROPERTY; HERE THE CRITERIA FOR A DEEDED EASEMENT WERE NOT MET; BUT THE CRITERIA FOR A PRESCRIPTIVE EASEMENT WERE MET (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiffs did not demonstrate they had a deeded easement over the disputed land, but did demonstrate they had a prescriptive easement, although the extent of the easement must be determined at trial: “An easement is not a personal right of the landowner but is an appurtenance to the […]

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THE STIPULATION RE: SHARING HUSBAND’S PENSION AT A FUTURE DATE WAS NOT AMBIGUOUS AND NEED NOT BE REFORMED; THE STIPULATION WHICH WAS INCORPORATED BUT NOT MERGED INTO THE DIVORCE JUDGMENT CANNOT BE REFORMED PURSUANT TO A MOTION, A PLENARY ACTION IS REQUIRED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the stipulation that was incorporated but not merged into the divorce judgment was not ambiguous and should not have reformed the stipulation based upon a mutual mistake. The stipulation was not ambiguous and required the husband to share his pension when he turned 62. In addition, reformation of […]

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PLAINTIFF WAS INJURED DIVING UNDER A TRUCK WHEN THERE WAS AN EXPLOSION AS A BROKEN UTILITY POLE WITH LIVE ELECTRIC WIRES WAS BEING HOISTED; THE WORK WAS NOT ROUTINE MAINTENANCE SO THERE WERE QUESTIONS OF FACT PRECLUDING SUMMARY JUDGMENT IN FAVOR OF DEFENDANTS ON THE LABOR LAW 241(6) CAUSE OF ACTION; QUESTIONS OF FACT ABOUT THE CAUSE OF THE EXPLOSION AND SUPERVISORY CONTROL PRECLUDED SUMMARY JUDGMENT IN FAVOR OF DEFENDANTS ON THE LABOR LAW 200 CAUSE OF ACTION (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined defendants’ summary judgment motion on the Labor Law 241(6) and 200 causes of action should not have been granted. Plaintiff was 150 feet away from a broken utility pole which needed to be removed. The pole was damaged when struck by a vehicle and the attached electric […]

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THE 90-DAY DEMAND REQUIRED BY CPLR 3216 WAS NOT PROVIDED BY THE COURT’S ORDER; THE ACTION SHOULD HAVE BEEN RESTORED TO THE ACTIVE CALENDAR WITHOUT A SHOWING OF MERIT; THE ISSUE, FIRST RAISED ON APPEAL, WAS PROPERLY CONSIDERED BY THE APPELLATE COURT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the action should have been restored to the active calendar because the 90-day demand required by CPLR 3216 was never provided. The issue was properly considered for the first time on appeal because, had the issue been raised below, it could not have been ignored: Here, the order dated […]

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