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Entries by Bruce Freeman

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​ THE ALLEGATIONS DID NOT RAISE A QUESTION OF FACT WHETHER THERE WAS A SPECIAL RELATIONSHIP BETWEEN PLAINTIFF AND DEFENDANT INSURANCE AGENT SUCH THAT PLAINTIFF COULD RELY ON THE AGENT TO CORRECT ANY MISREPRESENTATIONS IN THE INSURANCE APPLICATION (FIRST DEPT).

The First Department, reversing Supreme Court, determined the insurance agent’s (Brownstone’s) motion for summary judgment in this insurance-coverage dispute should have been granted. The insurer disclaimed coverage for damage caused by a fire on plaintiff’s property. Plaintiff alleged there was a special relationship between plaintiff and the agent and plaintiff relied on the agent to correct […]

BECAUSE LOOSE PLANKS ON A SCAFFOLD CONSTITUTED A PROXIMATE CAUSE OF PLAINTIFF’S FALL IN THIS LABOR LAW 240(1) ACTION, PLAINTIFF’S ACTS OR OMISSIONS COULD NOT BE THE SOLE PROXIMATE CAUSE OF THE FALL AND THE RECALCITRANT WORKER DEFENSE WAS NOT AVAILABLE (FIRST DEPT). ​

The First Department, reversing (modifying) Supreme Court, determined plaintiff was entitled to summary judgment on his Labor Law 240(1) cause of action stemming from a fall from a scaffold. Because the scaffold was defective, plaintiff’s actions or omissions could not be the sole proximate cause of the accident. The “recalcitrant worker” defense was also rejected: […]

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THE CHALLENGES TO THE PROCEDURES FOR RELIGIOUS AND MEDICAL EXEMPTIONS FROM THE COVID-19 VACCINE MANDATE FOR NYC TEACHERS, AS WELL AS “LEAVE WITHOUT PAY” FOR THOSE WHO DID NO APPLY FOR AN EXEMPTION, WERE PROPERLY REJECTED (FIRST DEPT).

The First Department, over a dissent, determined the COVID-19 vaccine mandates imposed by the arbitrator for NYC Department of Education (DOE) employees properly survived the hybrid Article 75/78 challenge. The arbitration initiated by the United Federation of Teachers (UFT) resulted in the September 10, 2021 Impact Award which established procedures for religious and medical exemptions: […]

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FAMILY COURT SHOULD NOT HAVE RELINQUISHED TEMPORARY EMERGENCY JURISDICTION OVER THE NEGLECT PROCEEDING UPON LEARNING FATHER HAD COMMENCED A CUSTODY PROCEEDING IN TEXAS; THERE WAS NO ASSURANCE FROM THE TEXAS COURT RE: SAFEGUARDING THE CHILD (FIRST DEPT).

The First Department, reversing Family Court in this neglect proceeding, determined the judge should not have relinquished temporary emergency jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) when father commenced custody proceedings in Texas: Family Court improperly relinquished emergency jurisdiction for three reasons. First, there is no evidence in this record, and […]

A WORKER WHO WAS INJURED IN NEW YORK BUT LIVES IN NEW JERSEY CAN SEEK TREATMENT FROM A NEW JERSEY DOCTOR WHO IS NOT AUTHORIZED BY THE WORKERS’ COMPENSATION BOARD, EVEN IF THE NEW JERSEY PHYSICIAN IS ALSO LICENSED IN NEW YORK (THIRD DEPT). ​

The Third Department, reversing the Workers’ Compensation Board, determined claimant, who was injured in New York but resided in New Jersey, was not required to seek treatment from a New Jersey doctor who was authorized to provide treatment by the Board, even where, as here, the New Jersey doctor is also licensed in New York: […]

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PLAINTIFF’S DAUGHTER SHOULD NOT HAVE BEEN APPOINTED TO SERVE AS THE INTERPRETER FOR HER MOTHER’S DEPOSITION IN THIS MEDICAL MALPRACTICE CASE; THE CRITERIA FOR ALLOWING A RELATIVE TO SERVE AS AN INTERPRETER ARE EXPLAINED (SECOND DEPT). ​

The Second Department, in a full-fledged opinion by Justice Wooten, determined the plaintiff’s daughter should not have been appointed an interpreter for plaintiff’s deposition in this medical malpractice action. The opinion lays out the criteria for when a relative could be allowed to act as an interpreter: … [W]e hold that the appointment of an […]

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A RESTITUTION HEARING IS REQUIRED WHEN (1) THE DEFENDANT REQUESTS IT, AND (2) WHEN THE EVIDENCE OF THE AMOUNT IS INSUFFICIENT (SECOND DEPT). ​

The Second Department, in a full-fledged opinion by Justice Wooten, clarified when a restitution hearing is required: Pursuant to Penal Law § 60.27, in sentencing a criminal defendant, the court may require the defendant to pay restitution of the fruits of an offense for which he or she was convicted. Under certain circumstances set forth […]

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THE JUDGE CANNOT, SUA SPONTE, DIRECT ARBITRATION WITHOUT A REQUEST FROM A PARTY; NON-SIGNATORIES TO AN AGREEMENT CONTAINING A FORUM SELECTION PROVISION MAY BE BOUND BY THE PROVISION IF THEY ARE SIGNATORIES TO A RELATED AGREEMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, in a full-fledged opinion by Justice Connolly, interpreted jurisdiction, forum selection and arbitration provisions in the subject agreements. The decision is fact-specific and cannot be fairly summarized here. The court summarized its rulings as follows: This appeal presents novel questions related to jurisdiction, as well as arbitration and forum […]

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THE JUDGE IN THIS CUSTODY PROCEEDING SHOULD NOT HAVE SUSPENDED FATHER’S PARENTAL ACCESS WITHOUT HOLDING A “BEST INTERESTS” HEARING (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the judge in this custody proceeding should not have suspended father’s parental access without holding a “best interests of the child” hearing: “Custody determinations . . . require a careful and comprehensive evaluation of the material facts and circumstances in order to permit the court to ascertain the […]

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THE BUSINESS RECORDS REFERRED TO IN THE PLAINTIFF’S AFFIDAVIT DEMONSTRATING DEFENDANT’S DEFAULT IN THIS FORECLOSURE ACTION WERE NOT ATTACHED, RENDERING THE AFFIDAVIT HEARSAY (SECOND DEPT). ​

The Second Department, reversing Supreme Court in this foreclosure action, determined the failure to submit the business records referred to in plaintiff’s affidavit rendered the affidavit hearsay. Therefore plaintiff bank did not present prima facie proof of defendant’s default: … [T]he plaintiff submitted an affidavit of an employee of its loan servicer, who averred that […]

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