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Entries by Bruce Freeman

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HERE THE MEMORANDUM OF UNDERSTANDING REQUIRED INSTALLATION AND MAINTENANCE OF A GUTTER, DOWNSPOUT AND FENCE FOR $2500; THE MEMORANDUM WAS NOT AN “INSTRUMENT FOR THE PAYMENT OF MONEY ONLY” AND THEREFORE “SUMMARY JUDGMENT IN LIEU OF COMPLAINT” WAS NOT AVAILABLE (FOURTH DEPT).

The Fourth Department, reversing County Court, determined summary judgment in lieu of complaint was not available because the underlying document was not “an instrument for the payment of money only:” By motion for summary judgment in lieu of complaint (see CPLR 3213), plaintiff moved for judgment in the amount of $2,500.00, plus interest, pursuant to […]

THE BREACH OF CONTRACT SUIT STEMMED FROM CONSTRUCTION DELAYS; THE LOST PROFITS CLAIM SHOULD HAVE BEEN DISMISSED AS SPECULATIVE (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined the defendants’ motion to dismiss the claim for lost profits in this breach of contract action should have been granted. The suit was premised on construction delays which postponed the start-date for the operation of the business. The underlying business was a start-up. Damages for lost profits […]

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DEFENDANT DROVE ON THE RIGHT SHOULDER TO GO AROUND A VEHICLE THAT WAS TURNING AND THEN SUDDENLY CROSSED THE DOUBLE LINE AND STRUCK A MOTORCYCLIST IN THE ONCOMING LANE; THE EVIDENCE WAS NOT LEGALLY SUFFICIENT TO CONSTITUTE “RECKLESS” CONDUCT WITHIN THE MEANING OF THE MANSLAUGHTER STATUTE (FOURTH DEPT).

The Fourth Department, reversing defendant’s manslaughter conviction and dismissing the indictment, determined the evidence of how defendant was driving before his vehicle crossed into the oncoming lane and struck the victim’s motorcycle did not rise to the level of recklessness: The People introduced eyewitness testimony at trial that, before the accident, defendant was tailgating a […]

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ALTHOUGH PLAINTIFFS COULD HAVE COMMENCED THE LAWSUIT WITHIN THE THREE-YEAR STATUTE OF LIMITATIONS BY FILING BEFORE OR AFTER THE COVID TOLL-PERIOD, THAT IS NOT RELEVANT; THE TOLL EFFECTIVELY ADDED 228 DAYS, THE LENGTH OF THE TOLL-PERIOD, TO THE THREE-YEAR STATUTE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined that the COVID tolls of the statute of limitations rendered the plaintiffs action timely: 472 days of the 1,095-day limitation period had elapsed by the time the toll began on March 20, 2020. Upon the expiration of the toll on November 3, 2020, the remaining 623 days of […]

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THE TOWN ZONING BOARD SHOULD NOT HAVE INTERPRETED THE TERM “SINGLE FAMILY DWELLINGS” SUCH THAT SHORT TERM RENTALS WERE PROHIBITED BECAUSE TRANSIENT TENANTS DO NOT MEET THE DEFINITION OF “FAMILY” (FOURTH DEPT).

The Fourth Department, reversing Supreme Court and annulling the zoning board’s (ZBA’s) ruling, determined the term “single family dwellings” should not have been interpreted to prohibit short-term rentals. The ZBA reasoned that short-term, transient tenants do not meet the definition of “family:” “[L]ocal zoning boards have broad discretion, and [a] determination of a zoning board […]

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PLAINTIFF, A PERMISSIVE DRIVER OF DEFENDANT’S TRUCK, WAS INJURED WHEN HE OPENED THE WATER RESERVOIR FOR THE ENGINE AND IT “EXPLODED,” APPARENTLY BECAUSE THE ENGINE OVERHEATED DUE TO THE POSITION OF THE SNOW PLOW AND THE CONSEQUENT BLOCKING OF AIR FLOW TO THE ENGINE; THERE ARE QUESTIONS OF FACT WHETHER THE INCIDENT WAS FORESEEABLE, WHETHER PLAINTIFF WAS THE SOLE PROXIMATE CAUSE, AND WHETHER DEFENDANT OWED PLAINTIFF A DUTY OF CARE (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court, determined there were questions of fact whether the incident was foreseeable, whether plaintiff’s conduct was the sole proximate cause of the incident, and whether defendant owed plaintiff a duty of care. Plaintiff was driving defendant’s truck when everything on the dashboard turned red and plaintiff pulled over to check […]

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PLAINTIFF’S HUSBAND, THE INSURED, WAS DRIVING WHEN PLAINTIFF WAS SERIOUSLY INJURED IN A TRAFFIC ACCIDENT; PLAINTIFF MAY BE ABLE TO SHOW HER HUSBAND HAD REQUESTED COVERAGE ON HER BEHALF AND, BECAUSE THE INSURER (ALLEGEDLY) NEGLIGENTLY FAILED TO PROVIDE THE COVERAGE, THE INSURER IS OBLIGATED TO COVER HER LOSS, DESPITE HER STATUS AS A NONCLIENT (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined that the injured plaintiff might be able to show her husband (the insured) requested supplemental spousal liability (SSL) coverage on her behalf and that she was harmed by the insurer’s failure to provide it, despite her status as a nonclient. Plaintiff’s husband was driving and plaintiff was […]

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A TEACHER IS NOT A PERSON LEGALLY RESPONSIBLE FOR THE CARE OF A STUDENT WITHIN THE MEANING OF THE SOCIAL SERVICES LAW; THEREFORE A SCHOOL DISTRICT IS NOT OBLIGATED TO REPORT SUSPECTED CHILD ABUSE BY A TEACHER (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined that the teacher (Grunwald) accused of sexual abuse of a student in this Child Victims Act suit was not a person legally responsible for the child’s care within the meaning of the Social Services Law. Therefore the defendant school district did not have a duty to report […]

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AT THE SUPPRESSION HEARING THE PEOPLE DEMONSTRATED THE TRAFFIC STOP OF DEFENDANT’S VEHICLE WAS BASED ON A POLICE OFFICER’S COMPUTER DMV CHECK WHICH SHOWED DEFENDANT’S INSURANCE HAD LAPSED; IN SUPPORT OF THE SUPPRESSION MOTION THE DEFENDANT SUBMITTED VERIFICATION THAT THE INSURANCE HAD NOT LAPSED; AT THAT POINT THE PRESUMPTION OF RELIABILITY DISAPPEARED AND THE PEOPLE WERE REQUIRED TO SHOW THE RELIABILITY OF THE DMV CHECK, WHICH THEY FAILED TO DO (FOURTH DEPT).

The Fourth Department, reversing Supreme Court’s denial of suppression and dismissing the indictment, determined the People did not meet their burden of going forward at the suppression hearing by demonstrating the legality of the police conduct. The traffic stop was justified by a DMV check showing the insurance of defendant’s vehicle had lapsed. In support […]

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