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Entries by Bruce Freeman

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THE PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN THIS ROAD-DEFECT SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED; THE NINE-MONTH DELAY WAS NOT EXPLAINED; THE CITIY DID NOT HAVE TIMELY NOTICE OF THE POTENTIAL LAWSUIT; AND PETITIONER DID NOT SHOW THE CITY WOULD NOT BE PREJUDICED BY THE DELAY (SECOND DEPT).

​The Second Department, reversing Supreme Court, determined the petition for leave to file a late notice of claim in this road-defect slip and fall case should not have been granted: … [T]he petitioner’s initial delay in serving a notice of claim upon the City was reasonable, as she provided evidence that she was incapacitated until […]

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​HERE THERE IS AN UNRESOLVED QUESTION ABOUT WHETHER PLAINTIFF IS ENTITLED TO WORKERS’ COMPENSATION BENEFITS; SUPREME COURT SHOULD GRANTED SUMMARY JUDGMENT TO DEFENDANTS AND REFERRED THE MATTER TO THE WORKERS’ COMPENSATION BOARD (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the matter should have been referred to the Workers’ Compensation Board and therefore defendants’ motion for summary judgment in this slip and fall case should have been granted: The plaintiff allegedly was injured when she fell at certain property owned by the defendants (hereinafter the property). Thereafter, the […]

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THE EVIDENCE SUBMITTED IN SUPPORT OF THE MOTION TO DISMISS WAS NOT “DOCUMENTARY EVIDENCE” WITHIN THE MEANING OF CPLR 3211(A)(1); THE MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant-employer’s motion to dismiss in this traffic accident case should not have been granted. The employer argued the defendant-employee was driving his own car and was not operating the car in the course of his employment. The evidence submitted by the employer was not “documentary evidence” which […]

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THE COMPLAINT DID NOT STATE CAUSES OF ACTION FOR BREACH OF IMPLIED WARRANTY FOR A PARTICULAR PURPOSE OR BREACH OF IMPLIED WARRANTY OF MERCHANTABILITY (FIRST DEPT).

The First Department, reversing Supreme Court, determined the complaint in this products liability case did not state causes of action for breach of warranty. Plaintiff tried the product, an elastic exercise band, which was on display at the store. He secured one end of the band with his foot. That end slipped out and hit […]

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MEDICAL (SURGICAL) RECORDS IN A NO-FAULT FILE RELATED TO A PRIOR INJURY SUFFERED BY PLAINTIFF SHOULD NOT HAVE BEEN ADMITTED IN THIS DAMAGES TRIAL; NEW TRIAL ON DAMAGES ORDERED (FIRST DEPT).

​The First Department, reversing the damages judgment and ordering a new trial, determined medical records included the the no-fault file regarding a prior injury suffered by plaintiff should not have been admitted: The court … should not have allowed into evidence the operative and pathology reports from the 2002 surgical procedure that were contained in […]

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PLAINTIFF STATED CAUSES OF ACTION FOR EMPLOYMENT DISCRIMINATION AND VIOLATIONS OF THE LABOR LAW (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff had stated causes of action for employment discrimination, failure to pay overtime, and failure to pay weekly: … [P]laintiff has sufficiently stated a cause of action for employment discrimination under both the New York State and New York City Human Rights Laws … . Plaintiff alleges that […]

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PLAINTIFF SLIPPED AND FELL COMING OUT OF THE SHOWER, INJURING HER GENITAL AND PELVIC AREAS; DEFENDANTS WERE ENTITLED TO AN INDEPENDENT MEDICAL EXAMINATION WHICH MIRRORED THE EXAM DONE BY PLAINTIFF’S OWN PHYSICIAN, INCLUDING A GYNECOLOGICAL EXAM AND A FULL PELVIC EXAM; SUPREME COURT HAD DENIED THE FULL PELVIC EXAM; THERE WAS AN EXTENSIVE DISSENT (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Renwick, over a full-fledged dissenting opinion, reversing (modifying) Supreme Court, determined defendants in this slip and fall case was entitled to an independent medical examination (IME) of plaintiff which included both a gynecological exam and a full pelvic exam, conducted by a female doctor. Plaintiff alleged […]

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THE CITY IS NOT ENTITLED TO GOVERNMENTAL FUNCTION IMMUNITY WHEN ENGAGED IN THE PROPRIETARY FUNCTION OF MAINTAINING ROADS; IN THE ABSENCE OF A STUDY TO DETERMINE THE RISKS OF A HIGHWAY DESIGN, THE CITY IS NOT ENTITLED TO QUALIFIED IMMUNITY; THERE WAS A QUESTION OF FACT WHETHER THE ABSENCE OF SIGNS AND ROADWAY MARKINGS WAS A PROXIMATE CAUSE OF THE INTERSECTION TRAFFIC ACCIDENT (FIRST DEPT).

The First Department noted that the city in this intersection traffic accident case was not entitled to governmental function immunity or qualified immunity. Plaintiff motorcyclist alleged the city, during roadway construction, had removed roadway markings and signs creating confusion for drivers and contributing to the accident: The City is not entitled to governmental function immunity, […]

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NONPUBLIC RESIDENTIAL HEALTH CARE FACILITIES NEED PERMISSION TO WITHDRAW EQUITY OR TRANSFER ASSETS IN EXCESS OF 3% OF THE FACILITIES’ REVENUE; CORPORATE OWNERS NEED NOT INCLUDE FEDERAL AND STATE INCOME TAXES IN THE 3% CALCULATION; FACILITIES OWNED BY PASS-THROUGH ENTITIES (I.E., LIMITED LIABILITY COMPANIES) MUST INCLUDE FEDERAL AND STATE INCOME TAXES IN THE 3% CALCULATION (THIRD DEPT).

The Third Department, in two full-fledged opinions by Justice Lynch, determined that nonpublic residential health care facilities owned by pass-through entities (i.e., a limited liability company, S corporation, partnership or sole proprietorship) must include federal and state income taxes in the calculation of equity withdrawals. Public Health Law 2808 (5) prohibits the withdrawal of equity or transfer of […]

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​ THE MAJORITY HELD THE EVIDENCE DID NOT ESTABLISH DISORDERLY CONDUCT AS A FAMILY OFFENSE, FINDING THE CONDUCT WAS NOT “PUBLIC;” THE DISSENT ARGUED THE CONDUCT WAS “PUBLIC” IN THAT IT TOOK PLACE IN THE PRESENCE OF ADULTS AND CHILDREN OUTSIDE A DAYCARE CENTER (THIRD DEPT).

The Third Department, over a dissent, determined the evidence did not establish a family offense (disorderly conduct): The majority and the dissenter disagreed on whether the conduct was “public” in nature: “[C]ritical to a charge of disorderly conduct is a finding that [the mother’s] disruptive statements and behavior were of a public rather than an […]

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