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Entries by Bruce Freeman

DEFENDANT PROPERTY OWNER DID NOT DEMONSTRATE WHEN THE AREA WHERE PLAINTIFF SLIPPED AND FELL WAS LAST INSPECTED PRIOR TO FALL; THEREFORE DEFENDANT DID NOT DEMONSTRATE IT DID NOT HAVE CONSTRUCTIVE NOTICE OF THE DEFECTIVE CONDITION (THIRD DEPT). ​

The Third Department, reversing (modifying) Supreme Court, determined defendant building owner, 797 Broadway, did not demonstrate it did not have constructive notice of the alleged loose elevator threshold plate over which plaintiff slipped and fell: … 797 Broadway submitted the sworn affidavit of David Fallati, who … acted as the property manager for the building. […]

THE FACT THAT PLAINTIFF WAS USING HIS OWN LADDER WHEN IT FELL DID NOT PRECLUDE RECOVERY UNDER LABOR LAW 240(1); AS THERE WAS NO EVIDENCE OF MEASURES TAKEN TO PREVENT THE LADDER FROM FALLING, PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT (THIRD DEPT).

The Third Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment in this Labor Law 240(1) ladder-fall case. Plaintiff brought his own ladder to the job and the feet of the ladder apparently slipped away from the wall. Plaintiff alleged the ladder should have been secured in some way (i.e., a person should […]

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THE LEGISLATION ALLOWING PUBLIC FUNDS TO BE USED TO CONSTRUCT A $1.4 BILLION STADIUM FOR THE BUFFALO BILLS IS CONSTITUTIONAL (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Pritzker, determined the statutes authorizing the use of public funds to construct a stadium for the Buffalo Bills are constitutional: … [T]he NY Constitution establishes that “[t]he money of the state shall not be given or loaned to or in aid of any private corporation or […]

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THE DEFENDANT WAS ENTITLED TO A SIROIS HEARING ON WHETHER HE PROCURED THE VICTIM’S REFUSAL TO TESTIFY; CONVICTION REVERSED (THIRD DEPT).

The Third Department, reversing defendant’s conviction, determined the defendant was entitled to a Sirois hearing. The People argued the victim’s statement should be placed in evidence because the defendant had procured her silence at trial. But the evidence on the issue was conflicting, necessitating a hearing: … “[D]efendant should have been afforded an opportunity to […]

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AN ORDER TO EFFECT SERVICE OF PROCESS IN A MANNER WHICH CANNOT BE COMPLIED WITH PRECLUDES PERSONAL JURISDICTION; PETITIONER DID NOT PRESENT SUFFICIENT EVIDENCE OF ELECTION FRAUD (SECOND DEPT).

The Second Department, reversing Supreme Court, determined: (1) the order to show cause specified a method of service which could not be complied with; therefore personal jurisdiction over Williams was not obtained: (2) election fraud on Williams part was not demonstrated: Since the method of service provided in the order to show cause was jurisdictional […]

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UGELL SHOULD NOT HAVE BEEN DISQUALIFIED AS A CANDIDATE FOR TOWN SUPERVISOR; THE FACT THAT UGELL IS A TOWN JUSTICE IS NOT DISQUALIFYING; ELECTION FRAUD MUST BE PROVEN BY CLEAR AND CONVINCING EVIDENCE, LACKING HERE (SECOND DEPT).

​The Second Department, reversing Supreme Court, determined Ugell, a town justice, should not have been disqualified as a candidate for town supervisor. The fact that Ugell is a town justice was not disqualifying. There was no clear and convincing evidence of election fraud: The petitioners presented no basis to disqualify Ugell under Election Law § […]

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THE FRANCHISOR, TOYOTA, DID NOT EXERCISE CONTROL OVER THE FRANCHISEE’S, PLAZA TOYOTA’S, DAILY OPERATIONS; THEREFORE TOYOTA COULD NOT BE HELD VICARIOUSLY LIABLE FOR PLAZA TOYOTA’S NEGLIGENCE; HERE A WHEEL FELL OFF PLAINTIFF’S CAR AFTER IT WAS SERVICED AT PLAZA TOYOTA (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the complaint against the franchisor, here Toyota, for the negligence of the franchisee car dealership, Plaza Toyota, should have been dismissed. After the plaintiff’s car was worked on at Plaza Toyota, a front wheel fell off: Supreme Court erred in denying the Toyota defendants’ cross-motion for summary judgment […]

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STRIKING A PEDESTRIAN IS NEGLIGENCE PER SE; FAILING TO SEE WHAT THERE IS TO SEE IS NEGLIGENCE; ANY COMPARATIVE NEGLIGENCE ON PLAINTIFF’S PART IS NOT TO BE CONSIDERED; PLAINTIFF PEDESTRIAN’S MOTION FOR SUMMARY JUDGMENT IN THIS TRAFFIC ACCIDENT CASE SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment in this pedestrian-vehicle traffic accident case should have been granted. Striking a pedestrian is a violation of the Vehicle and Traffic Law which is negligence per se. In addition a driver is expected to see what there is to be seen. Defendant was […]

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UNDER THE 2022 AMENDMENT TO CPLR 213, A BANK WHICH HAS STARTED A FORECLOSURE ACTION CANNOT STOP THE RUNNING OF THE STATUTE OF LIMITATIONS BY A VOLUNTARY DISCONTINUANCE; THE BANK DID NOT DEMONSTRATE COMPLIANCE WITH THE MAILING REQUIREMENTS OF RPAPL 1304 (SECOND DEPT).

The Second Department, reversing Supreme Court, noted that the 2022 amendment to CPLR 213 (the Foreclosure Abuse Prevention Act [FAPA]) overruled the recent Court of Appeals case which held a voluntary discontinuance of a foreclosure action stopped the running of the statute of limitations. In addition, the Second Department ruled the plaintiff bank did not […]

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THE ADMINISTRATOR’S MOTION TO BE SUBSTITUED AS PLAINTIFF IN THIS MEDICAL MALPRACTICE ACTION, INITIALLY DENIED, SHOULD NOT HAVE BEEN GRANTED UPON THE MOTION TO RENEW; THE CRITERIA FOR A MOTION TO RENEW, AND A MOTION TO BE SUBSTITUTED FOR A DECEASED PARTY ARE EXPLAINED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the administrator’s (Walter’s) motion to renew in this medical malpractice action should not have been granted. Walter moved to be substituted as plaintiff. Initially the motion was denied but upon Walter’s motion to renew, the motion was granted: “A motion for leave to renew . . . shall […]

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