Bruce Freeman – Page 2 – New York Appellate Digest

DEFENDANT RAISED A QUESTION OF FACT WHETHER THE ADDRESS AT WHICH SERVICE OF PROCESS WAS ATTEMPTED WAS DEFENDANT’S ACTUAL PLACE OF BUSINESS; AN AFFIDAVIT OF SERVICE MAY NOT BE AMENDED TO CURE AN ERRONEOUS ADDRESS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant’s affidavit that the address at which service of process was made was not his business address and the affidavit of service could not be amended to cure the address-error: … [A]n affidavit submitted by [defendant] Harooni … was sufficient to demonstrate that the address where service […]

May 11, 2022 /0 Comments/by Bruce Freeman

Municipal Law, Negligence

THE NEGLIGENT ROADWAY DESIGN CAUSE OF ACTION IN THIS TRAFFIC ACCIDENT CASE SHOULD NOT HAVE BEEN DISMISSED; PLAINTIFFS ALLEGED THE ABSENCE OF TURNOUTS FOR DISABLED VEHICLES CREATED A DANGEROUS CONDITION (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined the negligent roadway design cause of action against the city should not have been dismissed in this traffic accident case. Plaintiffs alleged the absence of turnouts for disabled vehicles on Harlem River Drive created a dangerous condition: Defendants failed to establish that they were unaware of dangerous […]

May 10, 2022 /0 Comments/by Bruce Freeman

Civil Procedure, Employment Law, Labor Law

ACTION AGAINST AMAZON ALLEGING RETALIATION AGAINST WORKERS WHO PROTESTED COVID-RELATED WORKING CONDITIONS PREEMPTED BY NATIONAL LABOR RELATIONS ACT (NLRA) (FIRST DEPT).

The First Department, reversing Supreme Court, determined this action by the NYS Attorney General against Amazon alleging retaliation against workers for protesting COVID-related working conditions was preempted by the National Labor Relations Act (NLRA): … [W]e find that the Labor Law §§ 215 and 740 claims alleging retaliation against workers based, in part, on their […]

May 10, 2022 /0 Comments/by Bruce Freeman

Attorneys, Civil Procedure, Contract Law

A DISMISSAL WITHOUT PREJUDICE IS NOT A FINAL DETERMINATION ON THE MERITS AND IS NOT SUBJECT TO COLLATERAL ESTOPPEL; ATTORNEY’S FEES ARE APPROPRIATE DAMAGES IN AN ACTION FOR BREACH OF A FORUM SELECTION CLAUSE (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s (Wormser’s) action for breach of the forum selection clause seeking attorney’s fees could go ahead. The defendant’s (L’Oreal’s) New Jersey action had been dismissed “without prejudice,” and therefore was not precluded by collateral estoppel: After the New Jersey court had dismissed [defendant’s] complaint “with prejudice within the […]

May 10, 2022 /0 Comments/by Bruce Freeman

Administrative Law, Civil Procedure, Criminal Law

PETITIONERS. RELATIVES OF PERSONS IN THE NYS DNA DATABASE, HAD STANDING TO CHALLENGE THE RESPONDENTS’ REGULATIONS ALLOWING THE RELEASE OF “FAMILIAL DNA MATCH” INFORMATION LINKING DNA FROM A CRIME SCENE TO A FAMILY, NOT AN INDIVIDUAL; THE REGULATIONS WERE BASED ON SOCIAL POLICY AND THEREFORE EXCEEDED THE REGULATORY POWERS OF THE RESPONDENT AGENCIES; TWO-JUSTICE DISSENT ARGUED THE PETITIONERS DID NOT HAVE STANDING TO CHALLENGE THE REGULATIONS (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Gische, reversing Supreme Court, over a full-fledged two-justice dissenting opinion, determined the respondent agencies exceeded their regulatory powers when they authorized the release of so-called “familial DNA” information to be used as a possible lead for identifying the perpetrator of a crime. In the absence of […]

May 5, 2022 /0 Comments/by Bruce Freeman

Negligence, Vehicle and Traffic Law

ALTHOUGH PLAINTIFF WAS STRUCK IN THE ON-COMING LANE WHILE ATTEMPTING A LEFT TURN IN AN INTERSECTION, THERE WERE QUESTIONS OF FACT WHETHER DEFENDANT SHOULD HAVE SEEN THE PLAINTIFF (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant’s motion for summary judgment in this intersection traffic accident case should not have been granted. Although plaintiff was making a left turn when he was struck by defendant in the on-coming lane, there was a question of fact whether defendant should have seen plaintiff. Plaintiff was […]