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Entries by Bruce Freeman

ALTHOUGH THE PARKING/STORAGE AREA WHERE CLAIMANT WAS INJURED WAS NOT ON THE CONSTRUCTION SITE, THERE WAS A SUFFICIENT NEXUS BETWEEN THE PARKING/STORAGE AREA AND THE CONSTRUCTION SITE SUCH THAT CLAIMANT’S PLACE OF EMPLOYMENT EXTENDED TO THE PARKING/STORAGE AREA (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined the parking area where claimant was injured had a “sufficient nexus” with the construction site. Therefore claimant’s injury, incurred pulling the gate to the parking/storage area, arose from petitioner’s employment: Although the parking area where claimant was injured was not part of the construction site, and […]

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PLAINTIFF’S EMPLOYER, VERIZON, THREATENED LEGAL ACTION BASED UPON A NON-COMPETE AGREEMENT SIGNED BY PLAINTIFF IF PLAINTIFF RESIGNED TO WORK FOR WARNERMEDIA; PLAINTIFF’S TORTIOUS-INTERFERENCE-WITH-PROSPECTIVE-BUSINESS-RELATIONS CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant-employer (Verizon) was entitled to summary judgment dismissing the tortious-interference-with-prospective-business-relations cause of action. Plaintiff signed a non-compete agreement. When Verizon learned of plaintiff’s plan to resign and work for WarnerMedia Verizon warned plaintiff that resigning would lead to legal action: Although plaintiff contends that Verizon wrongfully threatened litigation […]

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THE REPEAL OF CIVIL RIGHTS LAW 50-A, WHICH PROHIBITED ACCESS TO POLICE PERSONNEL RECORDS, APPLIES RETROACTIVELY; PETITIONER PREVAILED RE: THE FOIL REQUEST AND WAS THEREFORE ENTITLED TO ATTORNEY’S FEES (FIRST DEPT).

The First Department, modifying Supreme Court, determined the repeal of Civil Rights Law 50-a, which prohibited access to police personnel records, applies retroactively. The court further held petitioner had prevailed re: the FOIL request and was therefore entitled to attorney’s fees: … [F]ormer Civil Rights Law § 50-a provided, with limited exceptions, that “[a]ll personnel records […]

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THE PETITIONERS BROUGHT A HYBRID ARTICLE 78/DECLARATORY JUDGMENT ACTION CHALLENGING A LOCAL LAW PROHIBITING SHORT-TERM RENTAL PROPERTIES; THE COURT NOTED THAT THE SUMMARY PROCEDURE AVAILABLE UNDER ARTICLE 78 SHOULD NOT HAVE BEEN APPLIED TO THE DECLARATORY-JUDGMENT ACTION (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, noted that in a hybrid Article 78/declaratory judgment/damages action, the summary procedure under Article 78 does not apply to the declaratory judgment. In order to summarily dispose of the declaratory judgment/damages aspect of the action, a party must request it or the court must notify the parties. Here […]

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THE DRIVER OF THE FIRE ENGINE RESPONDING TO AN EMERGENCY STRUCK PLAINTIFF’S STOPPED CAR WHILE MAKING A RIGHT TURN FROM A LANE TO THE LEFT OF PLAINTIFF; IT WAS NOT DEMONSTRATED THE FIRE-ENGINE DRIVER ACTED IN RECKLESS DISREGARD FOR THE SAFETY OF OTHERS (SECOND DEPT).

The Second Department determined the city was entitled to summary judgment in this traffic accident case involving a fire engine responding to an emergency. Plaintiff had stopped in the right lane and was struck by the fire engine as it made a right turn from the lane to the left of plaintiff, or possibly from […]

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THE FIVE-YEAR DELAY BETWEEN PLAINTIFF-DECEDENT’S DEATH AND THE MOTION TO SUBSTITUTE AN ADMINISTRATOR DID NOT WARRANT DISMISSAL OF THE ACTION; DECEDENT HAD BEEN AWARDED SUMMARY JUDGMENT ON LIABILITY IN THIS TRAFFIC-ACCIDENT CASE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the four year delay in appointment of an administrator and the addition one year in moving for substitution in this traffic accident case did not warrant dismissal of the action: … [T]he approximately four-year delay in obtaining letters of administration followed by an approximately one-year delay in moving […]

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THE “TIME WHEN” THE ALLEGED SEXUAL ABUSE TOOK PLACE IN 1997 WAS ADEQUATELY ALLEGED IN THE CLAIM IN THIS CHILD VICTIMS ACT SUIT (SECOND DEPT).

The Second Department, reversing the Court of Claims, determined the claim in this Child Victims Act action sufficiently described when the alleged sexual abuse took place: … [T]he Court of Claims incorrectly determined that the claim was insufficient to satisfy Court of Claims Act § 11(b)’s “time when” requirement … . The claimant’s allegations, including […]

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THE MOTION TO VACATE THE DEFAULT SHOULD HAVE BEEN GRANTED IN THE INTEREST OF JUSTICE, NO NEED TO DEMONSTRATE A REASONABLE EXCUSE; THE LOAN AGREEMENT WAS CRIMINALLY USURIOUS; THE MOTION TO DISIMISS BASED ON DOCUMENTARY EVIDENCE SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the default judgment should have been vacated in the interest of justice and the complaint dismissed based on documentary evidence. The loan which was the basis of the action was criminally usurious: “CPLR 5015(a) ‘does not provide an exhaustive list as to when a default judgment may be […]

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THE CIRCUMSTANTIAL EVIDENCE PRESENTED BY PLAINTIFF DID NOT IDENTIFY THE CAUSE OF PLAINTIFF’S DECEDENT’S SLIP AND FALL; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant property owner in this slip and fall case was entitled to summary judgment because plaintiff, the administrator of plaintiff’s decedent’s estate, could not identify the cause of plaintiff’s decedent’s fall. Plaintiff’s decedent died from a brain injury incurred by the fall in a bathroom. Although the complaint […]

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IT WAS AN ABUSE OF DISCRETION TO DENY PLAINTIFF’S MOTION TO REOPEN THE INQUEST ON DAMAGES (SECOND DEPT).

The Second Department, reversing Supreme Court, determined it was an abuse of discretion to deny plaintiff’s motion to reopen the inquest on damages. Although the motion was untimely, there was no prejudice to the defendants: … [T]he Supreme Court improvidently exercised its discretion in denying that branch of the plaintiff’s motion which was, in effect, […]

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