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Entries by Bruce Freeman

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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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PETITIONER-REPORTER PREVAILED IN THE FOIL ACTION DESPITE THE AVAILABILITY OF SOME OF THE REQUESTED INFORMATION ON A PUBLIC WEBSITE; THEREFORE PETITIONER WAS ENTITLED TO ATTORNEY’S FEES AND LITIGATION COSTS (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined petitioner-reporter’s request for an unredacted telephone directory for employees of the county police department should have been granted because the county did not demonstrate the information was exempt from disclosure. In addition, petitioner should have been awarded attorney’s fees and litigation costs because petitioner had prevailed in […]

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THE JURY’S FINDING THAT THE SCAFFOLD PROVIDED ADEQUATE PROTECTION FOR THE PLAINTIFF IN THIS SCAFFOLD-FALL CASE WAS AGAINST THE WEIGHT OF THE EVIDENCE; NEW TRIAL REQUIRED (FIRST DEPT).

The First Department, setting aside the defense verdict and ordering a new trial in this Labor Law 240(1) scaffold-fall action, determined the scaffold did not adequately protect the plaintiff: The scaffold on which plaintiff was working at the time of his accident failed to adequately protect him from a height-related hazard when his core drill […]

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THE CIVIL RIGHTS LAW, NOT THE CPLR, CONTROLS COUNTERCLAIMS FOR ATTORNEY’S FEES AND PUNITIVE DAMAGES IN A STRATEGIC LAWSUIT AGAINST PUBLIC PARTICIPATION (SLAPP) ACTION (FIRST DEPT). ​

The First Department, reversing (modifying) Supreme Court in this Strategic Lawsuit Against Public Participation (SLAPP) proceeding, determined that the criteria for dismissal of counterclaims are those in the Civil Rights Law, not the CPLR: In this Strategic Lawsuit Against Public Participation (SLAPP) action, the court’ s application of CPLR 3212(h) to the underlying summary judgment […]

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