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Entries by Bruce Freeman

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DEFENDANT STRUCK THE REAR OF PLAINTIFF’S STOPPED VEHICLE; DEFENDANT’S CLAIM THAT HIS FOOT SLIPPED OFF THE BRAKE PEDAL DID NOT PRESENT A NONEGLIGENT EXPLANATION OR TRIGGER THE EMERGENCY DOCTRINE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff in this rear-end collision case was entitled to summary judgment. Defendant’s allegation his foot slipped off the brake pedal because of rocks and pebbles under the floor mat did not present a nonnegligent explanation for striking plaintiff’s stopped vehicle: [Defendant’s] assertion that he tried to apply the […]

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THE RECENT COURT OF APPEALS DECISION ALLOWING A VETERINARIAN’S OFFICE TO BE SUED IN NEGLIGENCE WHEN A PATRON WAS BITTEN BY A DOG IN THE WAITING ROOM DID NOT EXTEND TO A RESTAURANT OWNER WHO ALLOWS PATRONS TO BRING THEIR LEASHED DOGS TO THE RESTAURANT; THE STRICT LIABILITY “NOTICE OF VICIOUS PROPENSITIES” STANDARD APPLIED TO THE RESTAURANT OWNER (SECOND DEPT).

The Second Department, in an extensive, full-fledged opinion by Justice Genovesi, reversing Supreme Court, determined the strict liability “notice-of-vicious-propensity” requirement applied to a restaurant which allowed patrons to bring their leashed dogs. Here the infant plaintiff was bitten by a patron’s dog. The negligence cause of action was not dismissed by Supreme Court pursuant to […]

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THERE CAN BE MORE THAN ONE PROXIMATE CAUSE OF AN ACCIDENT; HERE PLAINTIFF BICYCLIST WAS ENTITLED TO SUMMARY JUDGMENT ON LIABILITY BUT DEFENDANT DRIVER’S COMPARATIVE-NEGLIGENCE AFFIRMATIVE DEFENSE REMAINED VIABLE (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined plaintiff bicyclist should have been awarded summary judgment in this vehicle-bicycle accident case, but defendant’s comparative-negligence affirmative defense should not have been dismissed: On a motion for summary judgment on the issue of a defendant’s liability, a plaintiff is no longer required to show freedom from comparative […]

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PLAINTIFF’S EXPERTS WERE NOT QUALIFIED TO OFFER AN OPINION ON THE TREATMENT PROVIDED BY DEFENDANT MEDICAL ONCOLOGIST; THEREFORE THE EXPERTS DID NOT DEMONSTRATE DEFENDANT OWED PLAINITFF A DUTY OF CARE, A QUESTION OF LAW FOR THE COURT (SECOND DEPT).

The Second Department, in a comprehensive decision, over a comprehensive dissent, determined that the summary judgment motion by one of plaintiff’s treating physicians was properly granted in this medical malpractice case. Neither of plaintiff’s experts was qualified to assess the defendant medical oncologist’s (Hindenberg’s) care of plaintiff. Therefore the expert affidavits did not demonstrate defendant […]

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THE EVIDENCE PRESENTED IN SUPPORT OF THE DEFENDANT TOWN’S AND POLICE-OFFICER’S MOTION FOR SUMMARY JUDGMENT WAS UNEQUIVOCAL AND DEMONSTRATED THE OFFICERS DID NOT VIOLATE THE “RECKLESS DISREGARD” STANDARD WHEN PURSUING PLAINTIFF MOTORCYCLIST, WHO CRASHED AND WAS SERIOUSLY INJURED; THERE WAS NO INDICATION FURTHER DISCOVERY WOULD UNCOVER ADDITIONAL EVIDENCE; THE MOTION SHOULD NOT HAVE BEEN DENIED AS PREMATURE (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the town and police–officer defendants were entitled to summary judgment in this motorcycle-accident case. The plaintiff motorcyclist (Ronnie) was speeding when the defendant officers attempted to follow him with their emergency lights on. Both officers pulled back because of the plaintiff’s speed, losing sight of plaintiff. The officers […]

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RESPONDENT, THE CHILDREN’S UNCLE WHO LIVED WITH THE CHILDREN’S FAMILY, WAS A FUNCTIONAL EQUIVALENT OF A PARENT AND SHOULD HAVE BEEN DEEMED A PERSON LEGALLY RESPONSIBLE FOR THE CHILDREN IN THIS SEXUAL ABUSE PROCEEDING (SECOND DEPT).

The Second Department, reversing Family Court, determined respondent, the children’s uncle who lived with the children’s family, was a person legally responsible for the children who had sexually abused the children: “Determining whether a particular person has acted as the functional equivalent of a parent is a discretionary, fact-intensive inquiry which will vary according to […]

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PLAINTIFF WAS ENGAGED IN AN “ALTERING” ACTIVITY COVERED BY LABOR LAW 240 AND THE ACCIDENT–AN OBJECT FALLING DOWN A MANHOLE AND STRIKING PLAINTIFF–WAS ELEVATION-RELATED (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff was engaged in work covered by Labor Law 240 and the accident–an object falling down a manhole and striking plaintiff–was elevation-related: Plaintiff established that he was engaged in an “altering” activity as enumerated by Labor Law § 240(1). … [P]laintiff’s work involved more than “feeding cable through […]

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THE BIOLOGICAL MOTHER OF THE CHILD DIED BEFORE SHE AND PETITIONER WERE TO BE MARRIED; THE BIOLOGICAL FATHER ARGUED PETITIONER DID NOT HAVE STANDING TO SEEK CUSTODY AND FAMILY COURT AGREED; HOWEVER STANDING CAN BE DEMONSTRATED BY EXTRAORDINAY CIRCUMSTANCES WHICH MAY BE PRESENT; MATTER REMITTED FOR A RULING (FIRST DEPT).

The First Department, reversing Family Court, determined standing in a custody matter can be proven by extraordinary circumstances and sent the matter back for a ruling. The child’s mother died unexpectedly before she and petitioner were to be married. The petition was denied for lack of standing. However, standing can be proven by extraordinary circumstance […]

THE “CONSENT TO SEARCH” PROBATION CONDITION WAS NOT SUPPORTED BY THE NATURE OF DEFENDANT’S OFFENSE (SECOND DEPT).

The Second Department, eliminating the “consent to search” probation condition, determined the condition was not supported by the nature of defendant’s offense: Appeal by the defendant from a judgment … convicting him of assault in the second degree, upon his plea of guilty, and sentencing him to a definite term of incarceration of one day, […]

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FATHER DID NOT DEMONSTRATE THE CHILD WAS CONSTRUCTIVELY EMANCIPATED; THEREFORE FATHER’S SUPPORT OBLIGATION SHOULD NOT HAVE BEEN TERMINATED (SECOND DEPT).

The Second Department, reversing Family Court, determined father did not meet his burden of proof in his attempt to demonstrate the constructive emancipation of the child such that his support obligation should be terminated: “It is fundamental public policy in New York that parents are responsible for their children’s support until age 21” … . […]

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