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Entries by Bruce Freeman

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THE COMPLAINT ADEQUATELY ALLEGED THE COUNTY’S NEGLIGENT SUPERVISION OF PLAINTIFF WHILE SHE WAS IN FOSTER CARE; THE QUALIFIED IMMUNITY PURSUANT TO SOCIAL SERVICES LAW 419 IS NOT APPLICABLE (SECOND DEPT).

The Second Department, reversing Supreme Court in this Child Victims Act case, determined the complaint adequately alleged the defendant county knew or should have known of plaintiff’s foster father’s propensity to commit child abuse. The qualified immunity pursuant to Social Services Law 419 does not apply to negligent supervision of children in foster care: “[C]ounties […]

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AN ELEVATED BOARDWALK WITH NO GUARDRAILS WAS OPEN AND OBVIOUS AND NOT INHERENTLY DANGEROUS; THE VILLAGE WAS NOT LIABLE FOR PLAINTIFF BICYCLIST’S RIDING OFF THE BOARDWALK (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the village was not liable for plaintiff’s riding her bike off an elevated boardwalk. The condition (the elevated boardwalk) was deemed “open and obvious;” A landowner has a duty to maintain its premises in a reasonably safe manner … . However, there is no duty to protect or […]

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DEFENDANT’S UNSAFE LANE-CHANGE, A VIOLATION OF THE VEHICLE AND TRAFFIC LAW, WARRANTED SUMMARY JUDGMENT IN THIS TRAFFIC ACCIDENT CASE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment in this traffic accident case. Plaintiff alleged defendant (Roman) suddenly attempted to change lanes in violation of the Vehicle and Traffic Law and struck plaintiff’s car. Defendant’s claim that he glanced quickly to the left as plaintiff was attempting to pass him […]

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FAILURE TO UPDATE THE ADDRESS ON FILE WITH THE DEPARTMENT OF MOTOR VEHICLES (DMV) DOES NOT, STANDING ALONE, ESTOP THE DEFENDANT FROM CONTESTING SERVICE OF PROCESS (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Warhit, reversing Supreme Court, after reviewing the caselaw in the state, determined the defendant was not estopped from contesting service of process based solely on his failure to update his address with the Department of Motor Vehicles (DMV) as required by Vehicle and Traffic Law 505 (5). Although […]

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A 911 CALLER WHO PROVIDES ONLY HIS FIRST NAME IS AN ANONYMOUS INFORMANT AND PROVIDES THE POLICE WITH ONLY THE COMMON-LAW RIGHT TO INQUIRE (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court’s denial of suppression and dismissing the indictment, determined the 911 call was from an anonymous informant, even though the caller provided his first name. Because the informant was anonymous, the information about a black man in an orange jacket carrying a handgun gave rise only to the common-law right […]

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PLAINTIFF STORE MANAGER FELL FROM A LADDER WHILE ATTEMPTING TO REPLACE CEILING TILES DAMAGED BY A LEAK IN THE ROOF; PLAINTIFF SUED THE BUILDING OWNER; THE LABOR LAW CAUSES OF ACTION WERE PROPERLY DISMISSED BUT THE COMMON-LAW NEGLIGENCE CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined the Labor Law causes of action in this ladder-fall case were property dismissed, but the common law negligence cause of action should not have been dismissed. Plaintiff, the manager of a Dunkin Donuts, fell from the ladder when attempting to replace ceiling tiles damaged by a leak […]

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THE SORA RISK-LEVEL MOTION COURT SHOULD NOT HAVE RE-OPENED THE HEARING TO AMEND ITS ORIGINAL RISK-LEVEL DETERMINATION; THE CRITERIA FOR A MOTION TO RENEW WERE NOT MET; THE “INHERENT AUTHORITY” TO RE-OPEN APPLIES ONLY WHEN THE ORIGINAL RULING WAS BASED ON A MISTAKE; THE PEOPLE WERE NOT DEPRIVED OF THE OPPORTUNITY TO APPLY FOR AN UPWARD DEPARTURE (FIRST DEPT).

The First Department, reversing Supreme Court, determined the SORA court should not have reopened the SORA risk-level hearing to amend its prior risk-level ruling. The criteria for a motion to renew were not met and the other justifications for re-opening the hearing were not applicable: … [T]here are three ways in which a court could […]

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THE CRITERIA FOR LONG-ARM JURISDICTION BASED UPON A TORT COMMITTED “WITHIN THE STATE” CLARIFIED; NEW YORK DID NOT HAVE LONG-ARM JURISDICTION OVER THE OUT-OF-STATE INDIVIDUAL DEFENDANTS, MEMBERS OF AN LLC WHICH SOLD N95 MASKS TO THE NEW YORK PLAINTIFF; IT WAS ALLEGED THE QUALITY OF THE MASKS WAS MISREPRESENTED IN AN EMAIL TO THE NEW YORK PLAINTIFF (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Pitt-Burke, determined New York did not have long-arm jurisdiction over out-of-state individual defendants based upon an alleged misrepresentation in an email sent by defendants as principals of defendant LLC (RPP)  to the New York plaintiff. RPP sold N95 masks to plaintiff. A picture of a mask sent […]

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THE EXPERT AFFIDAVITS SUBMITTED BY DEFENDANT HOSPITAL IN THIS MEDICAL MALPPRACTICE ACTION WERE CONCLUSORY AND DID NOT ADDRESS ALL OF PLAINTIFF’S ALLEGATIONS; THEREFORE SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court in this medical malpractice action, determined the expert affidavits were conclusory and did not address all the allegations made by plaintiff. Therefore defendant’s (St. Luke’s) motion for summary judgment should not have been granted: The expert nurse and expert neurologist on whose affidavits St. Luke’s relied merely averred in […]

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A MUNICIPALITY HAS A DUTY TO INSPECT TREES ADJACENT TO ROADWAYS EVEN IF THE TREES ARE NOT ON THE MUNICIPALITY’S LAND; HERE THE MUNICIPALITY DID NOT DEMONSTRATE IT DID NOT HAVE CONSTRUCTIVE NOTICE OF THE CONDITION OF THE TREE WHICH FELL ON PLAINTIFFS CAR (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the town’s motion for summary judgment in this falling-tree traffic-accident case should not have been granted. Although the tree which fell on plaintiff’s car was on private property, it was adjacent to the road. A municipality has a duty to inspect trees adjacent to roads and the town […]

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