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Entries by Bruce Freeman

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THE DEFENDANT WHICH RENTED OUT THE AERIAL LIFT WHICH MALFUNCTIONED WAS NOT AN AGENT OF THE OWNER OR CONTRACTOR AND EXERCISED NO CONTROL OVER THE WORK, THEREFORE THE LABOR LAW CAUSES OF ACTION SHOULD HAVE BEEN DISMISSED; THE NEGLIGENCE CAUSE OF ACTION, HOWEVER, PROPERLY SURVIVED (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined that the Labor Law causes of action could not be brough against the defendant (Ahern) which rented out the aerial lift which malfunctioned. Ahern was not an agent of the owner or contractor and exercised no control over the work, so the Labor Law causes of action […]

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THE LABOR LAW CONSTRUCTION-ACCIDENT CAUSES OF ACTION SHOULD NOT HAVE BEEN JOINED OR CONSOLIDATED WITH THE MEDICAL MALPRACTICE CAUSES OF ACTION STEMMING FROM THE CONSTRUCTION-ACCIDENT INJURIES (FIRST DEPT).

The First Department, reversing Supreme Court, determined the motion to join or consolidate the Labor Law construction accident causes of action with the medical malpractice action stemming from the injuries should not have been granted: Plaintiff commenced suit in Kings County against several construction-related entities alleging violations of Labor Law §§ 200, 240, and 241, […]

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EVEN THOUGH DEFENDANT’S REQUEST FOR NEW COUNSEL WAS MADE RIGHT BEFORE JURY SELECTION, THE JUDGE SHOULD NOT HAVE DENIED THE REQUEST WITHOUT AN INQUIRY INTO THE REASON FOR IT (FIRST DEPT).

The First Department, reversing Supreme Court, determined the judge should not have denied defendant’s request for new counsel without an inquiry, despite the timing of the request (right before jury selection): “Defendant is entitled to a new trial because the court denied his request for new counsel without making any inquiry” into the substance of […]

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PLAINTIFF PEDESTRIAN WAS IN THE CROSSWALK WHEN PLAINTIFF’S CAR MADE A LEFT TURN AND STRUCK PLAINTIFF FROM BEHIND; PLAINTIFF WAS NOT COMPARATIVELY NEGLIGENT FOR FAILING TO SEE DEFENDANT’S CAR; PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff pedestrian was entitled to summary judgment in this traffic accident case. Plaintiff was in the crosswalk when defendant made left turn and struck plaintiff from behind. Plaintiff could not be held comparatively negligent for failing to see and avoid the defendant‘s vehicle: Plaintiff pedestrian established prima facie entitlement […]

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THE BOARD’S FINDINGS ON THE EXTENT OF PETITIONER’S DISABILITY WERE NOT SUPPORTED BY THE MEDICAL EVIDENCE SUBMITTED TO THE BOARD; REVERSAL WAS REQUIRED (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined the Board’s findings about the extent of petitioner’s disability were not based on the medical evidence presented at the hearing: Inasmuch as “it appears that the Board’s decision may have been based on an inaccurate reading of the record or incomplete facts, it cannot be sustained” […]

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FATHER’S OBJECTIONS (EXCEPTIONS) TO THE IMMEDIATE RETURN OF HIS SON TO ITALY PURSUANT TO THE HAGUE CONVENTION SHOULD NOT HAVE BEEN REJECTED; THE EXCEPTIONS RELATED TO ALLEGATIONS THE SON WAS SUBJECTED TO SEXUAL ABUSE BY A MINOR IN MOTHER’S HOME IN ITALY (THIRD DEPT).

The Third Department, reversing Supreme Court, remitting the matter for a hearing, determined father, pursuant to the Hague Convention, had demonstrated the child should not be returned to his mother in Italy based on his allegations he was being sexually abused by a minor who was living with mother and her boyfriend. Therefore, Supreme Court […]

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DEFENDANT IS ENTITLED TO CONSIDERATION WHETHER HE SHOULD BE AFFORDED YOUTHFUL OFFENDER STATUS, DESPITE HIS WAIVER OF APPEAL; THE ISSUE HERE WAS RAISED AFTER THE COMPLETION OF THE APPEALS PROCESS BY A MOTION FOR A WRIT OF CORAM NOBIS (THIRD DEPT).

The Third Department, remitting the matter for resentencing, determined defendant was entitled to consideration of whether he should be afforded youthful offender status in spite of defendant’s waiver of appeal: Defendant … moved for a writ of error coram nobis contending that Supreme Court neglected to consider whether he should be afforded youthful offender treatment […]

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THE STRUCTURED ACQUISITION OF A LIMITED LIABILITY COMPANY DID NOT CONSTITUTE A DISSOLUTION OF THE COMPANY UNDER THE TERMS OF THE OPERATING AGREEMENT (SECOND DEPT).

The First Department, in a full-fledged opinion by Justice Friedman, reversing (modifying) Supreme Court, determined the operating agreement was not breached. The facts and issues are too complex to fairly summarize here: The primary question on this appeal is whether an acquisition of a limited liability company, which transaction was structured as a sale of […]

DEFENDANT-PETITIONER WAS ENTITLED TO RELEASE FROM PRE-INDICTMENT CUSTODY PURSUANT TO CPL 30.30 (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the habeas corpus petition seeking defendant-petitioner’s release from pre-indictment custody should have been granted: … [P]etitioner demonstrated that more than 90 days elapsed from the commencement of the defendant’s confinement on April 27, 2023, until July 31, 2023, the date the petitioner made an application to the Supreme […]

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THE BANK DID NOT DEMONSTRATE STANDING TO BRING THE FORECLOSURE ACTION AND DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE-OF-DEFAULT PROVISION IN THE MORTGAGE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank in this foreclosure action did not demonstrate standing to bring the action and did not demonstrate it complied with the notice-of-default requirement in the mortgage: … [T]he plaintiff failed to establish … that it had standing to commence this action. Although the plaintiff attached to the […]

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