You are here: / Bruce Freeman

Entries by Bruce Freeman

,

PLAINTIFF, AN EXPERIENCED MOTOCROSS RIDER, ASSUMED THE RISK OF LOSING CONTROL OF HIS BIKE UPON LANDING AFTER A JUMP; PLAINTIFF WAS AWARE THAT SOME ASPECT OF THE LANDING AREA CAUSED HIM TO LOSE CONTROL OF THE BIKE ON A PRIOR PRACTICE RUN BUT DID NOT INVESTIGATE (THIRD DEPT).

The Third Department, reversing Supreme Court, over a dissent, determined plaintiff, an experienced motocross rider, assumed the risk of injury when using defendant’s motocross track. Plaintiff alleged a pothole where riders landed after a jump was filled with a talcum-powder-like substance which caused him to lose control of the bike. The majority concluded plaintiff was […]

, ,

HERE THE CLOSE RELATIONSHIP BETWEEN THE NON-SIGNATORY AND THE PARTY TO THE AGREEMENT WARRANTED FINDING THAT THE NON-SIGNATORY WAS BOUND BY THE FORUM SELECTION CLAUSE IN THE AGREEMENT (FIRST DEPT).

The First Department, after reinstating the tortious interference with contract cause of action, determined a non-signatory can be bound by a forum selection clause under the “closely related” doctrine. where the non-signatory and the party to the agreement have such a close relationship that it is foreseeable the forum selection clause will be enforced against […]

, , , ,

PLAINTIFFS’ ATTORNEY FAILED TO SUBMIT MEDICAL RECORDS REQUESTED BY THE JUDGE FOR MORE THAN A YEAR AFTER THE INQUEST; THE APPLICATION FOR DAMAGES SHOULD NOT HAVE BEEN DENIED ON THAT GROUND; PLAINTIFFS SHOULD NOT BE PENALIZED FOR THE NEGLECT OF THEIR ATTORNEY (SECOND DEPT). ​

The First Department, reversing Supreme Court, determined the application for damages in this personal injury action should not have been denied due to plaintiffs’ counsel’s failure to submit medical records for more than a year after the inquest. Plaintiffs should not be prejudiced by their counsel’s inaction: Although plaintiffs’ counsel had timely subpoenaed the relevant […]

, ,

THE PROOF THE FORECLOSURE NOTICE WAS MAILED IN ACCORDANCE WITH RPAPL 1304 WAS INSUFFICIENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the mortgage company in this foreclosure action did not demonstrate compliance the the notice requirements of RPAPL 1304: … [T]he copy of the notice contains no indication that it was sent by registered or certified mail, or by first-class mail … . Nor is there “[a] copy of […]

, , ,

THE NOTICE OF CLAIM IN THIS CHILD VICTIMS ACT CASE SUFFICIENTLY ALLEGED CLAIMANT’S INJURY, DEFENDANT’S FAILURE TO PROTECT CLAIMANT WHILE IN FOSTER CARE AND THE TIME THE CLAIM AROSE (SECOND DEPT).

The Second Department, reversing the Court of Claims, determined the Notice of Claim in this Child Victims Act proceeding sufficiently described claimant’s injury, the state’s failure to protect claimant while in foster care, and the time when the claim arose: … [T]he claim sufficiently provided the defendant with a description of the manner in which […]

, , ,

AN ATTORNEY’S REFERENCE IN AN EMAIL TO A NONPARTY AS A “WIFE BEATER” WAS ABSOLUTELY PRIVILEGED AS PERTINENT TO THE DIVORCE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined a statement in an email written by an attorney in a divorce action, referring to plaintiff as a wife beater, was pertinent to the divorce action and was absolutely privileged: The defendant Dina S. Kaplan is an attorney who represented the defendant Eric Dorfman in a divorce action […]

,

VACATING A NOTE OF ISSUE IS NOT THE SAME AS MARKING A CASE OFF PURSUANT TO CPLR 3404; WHEN A NOTE OF ISSUE IS VACATED, THE ACTION REVERTS TO A PRE-NOTE OF ISSUE STATUS AND CAN BE RESTORED TO THE ACTIVE CALENDAR WITHOUT MEETING THE STRINGENT CPLR 3404 REQUIREMENTS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion to restore the action to the active calendar should have been granted. The note of issue had been vacated but the action had not been marked off pursuant to CPLR 3404. Therefore the criteria for restoring an action that had been marked off for more than […]

​REMOVING SCAFFOLDS, LADDERS, ETC. FROM THE WORKSITE WAS “ANCILLARY” TO THE RENOVATION WORK AND THEREFORE PROTECTED BY LABOR LAW 240(1); THERE WAS A QUESTION OF FACT WHETHER PLAINTIFF’S FALLING OFF THE TOP OF THE VAN WHERE HE WAS LOADING THE EQUIPMENT WAS COVERED BY LABOR LAW 240(1) (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined plaintiff’s task of removing equipment (scaffolds, ladders, poles, etc.) from the worksite and loading them onto the top of a van was ancillary to the renovation work and therefore encompassed by Labor Law 240(1). Plaintiff fell from the roof of the van: … [T]he defendants’ submissions failed […]

, ,

THE TRIAL JUDGE TOOK ON THE APPEARANCE OF AN ADVOCATE FOR THE PROSECUTION IN QUESTIONING WITNESSES; ROBBERY CONVICTION REVERSED (SECOND DEPT).

The Second Department, reversing defendant’s robbery conviction and ordering a new trial, determined the trial judge acted as an advocate for the prosecution when questioning witnesses. The issue was not preserved but the Second Department exercised its interest of justice jurisdiction: “[A] trial judge is permitted to question witnesses to clarify testimony and to facilitate […]

,

THE WASHINGTON DC ATTEMPT TO COMMIT ROBBERY CONVICTION COULD NOT BE THE BASIS OF A SECOND FELONY OFFENDER ADJUDICATION IN NEW YORK (SECOND DEPT).

​The Second Department, reversing (modifying) Supreme Court, determined a Washington DC offense could not be the basis of a second felony offender adjudication. Although the issue was not preserved, the court exercised its interest of justice jurisdiction: … [T]he defendant’s conviction of attempt to commit robbery in Washington, D.C., cannot be used as a predicate […]

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy