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Entries by Bruce Freeman

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THE CONTINUOUS TREATMENT DOCTRINE TOLLED THE STATUTE OF LIMITATIONS IN THIS MEDICAL MALPRACTICE ACTION; ALTHOUGH THE PLAINTIFFS’ EXPERT’S AFFIDAVIT WAS UNSWORN, IT SHOULD HAVE BEEN CONSIDERED BECAUSE DEFENDANTS DID NOT OBJECT; DESPITE PLAINTFF’S SIGNING A GENERIC CONSENT FORM, THERE WERE QUESTIONS OF FACT WHETHER THERE WAS A LACK OF INFORMED CONSENT (SECOND DEPT).

The Second Department, reversing Supreme Court in this medical malpractice action, determined: (1) the continuous treatment doctrine tolled the statute of limitations for some of the causes of action; (2) the plaintiffs’ expert’s unsworn affidavit raised questions of fact about a departure from the requisite standard of care (although the unsworn affidavit was not in […]

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ALTHOUGH THE BREACH OF CONTRACT CAUSES OF ACTION WERE PROPERLY DISMISSED BECAUSE THE CONTRACT WAS NOT AMBIGUOUS AND PAROL EVIDENCE THEREFORE WAS NOT ADMISSIBLE; THE FRAUDULENT INDUCEMENT CAUSE OF ACTION, FOR WHICH PAROL EVIDENCE IS ADMISSIBLE, SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the fraudulent inducement cause of action should not have been dismissed as duplicative of the breach of contract causes of action, which were properly dismissed because the contract was not ambiguous and parol evidence was therefore not admissible: Supreme Court erred in granting that branch of the […]

DEFENDANTS’ CAR WAS STOPPED IN THE SHOULDER LANE FOR A NON-EMERGENCY REASON WHEN THE CAR IN WHICH PLAINTIFF WAS A PASSENGER STRUCK IT FROM BEHIND; THERE WERE QUESTIONS OF FACT WHETHER STOPPING THE CAR IN THE SHOULDER LANE FOR A NON-EMERGENCY REASON WAS A PROXIMATE CAUSE OF THE ACCIDENT (AS OPPOSED TO MERELY FURNISHING THE OCCASION FOR THE ACCIDENT?) (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the Feder defendants were not entitled to summary judgment dismissing the complaint in this rear-end collision traffic-accident case. Plaintiff was a passenger in a car when the driver pulled into the shoulder lane because a speeding car crossed his lane. The Feder defendants’ car was stopped in […]

WHERE AN ACTION HAS BEEN MARKED OFF AS “INACTIVE,” THERE IS NO NOTE OF ISSUE, THERE HAS BEEN NO 90-DAY DEMAND AND THERE IS NO ORDER DISMISSING THE COMPLAINT, RESTORATION TO THE CALENDAR AT ANY TIME IS AUTOMATIC (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion to retore the action to the calendar after it was marked off because plaintiff failed to appear should have been granted. A note of issue had not been filed, there had been no 90-day notice pursuant to CPLR 3216, and there was no order directing dismissal […]

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THE CONTRACT BETWEEN DEFENDANT AIRWAY CLEANERS AND DEFENDANT AMERICAN AIRLINES IN THIS AIRPORT SLIP AND FALL CASE DID NOT ENTIRELY DISPLACE AMERICAN AIRLINES’ DUTY TO KEEP THE BATHROOM SAFE; THEREFORE THE CONTRACT COULD NOT SERVE AS THE BASIS FOR AIRWAY CLEANERS’ LIABILTY TO PLAINTIFF UNDER ESPINAL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant Airway Cleaners’ contract with American Airlines did not entirely displace defendant American Airlines’ duty to maintain the bathroom where plaintiff slipped and fell. Therefore the contract between Airway Cleaners and American Airlines could not serve as the basis for Airway Cleaners’ liability to third parties (plaintiff) under […]

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DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS TRAFFIC ACCIDENT CASE SHOULD NOT HAVE BEEN GRANTED; THAT PLAINTIFF PLED GUILTY TO A TRAFFIC OFFENSE DOES NOT PROVE SHE WAS NEGLIGENT; PLAINTIFF ALLEGED SHE PLED GUILTY BECAUSE SHE DID NOT HAVE THE MONEY TO DRIVE FROM HER HOME FOR COURT APPEARANCES (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this bus-car traffic accident should not have been granted. The defendants submitted conflicting evidence about how the accident happened. The fact that plaintiff pled guilty to a traffic offense does not necessarily prove she was negligent. Plaintiff alleged she pled guilty to […]

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THERE WAS NO EVIDENCE DEFENDANT WAS AWARE OF THE SPONTANEOUS USE OF A KNIFE BY THE PERPETRATOR IN THIS MURDER CASE; THE EVIDENCE DEFENDANT SHARED THE PERPETRATOR’S INTENT, THEREFORE, WAS INSUFFICIENT (THIRD DEPT).

The Third Department, reversing defendant’s conviction for murder under an accomplice theory, determined the evidence defendant shared the intent of Mack, who stabbed the victim, was insufficient: To hold a person responsible for the criminal conduct of another, the People must demonstrate that “when, acting with the mental culpability required for the commission thereof, he […]

IF THE EVIDENCE PRESENTED IN A MOTION TO RENEW WAS AVAILABLE AT THE TIME OF THE ORIGINAL MOTION, THE FAILURE TO INCLUDE IT MUST BE EXPLAINED; HERE THE FAILURE WAS NOT EXPLAINED AND THE MOTION SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the evidence presented in plaintiff’s motion to renew was available at the time of the initial motion. Therefore plaintiff’s failure to explain the failure to include it required denial of the renewal motion: Plaintiff moved under CPLR 2221(e) for leave to renew defendants’ motion to vacate the default […]

THE FACT THAT PLAINTIFF COULD NOT EXPLAIN HOW THE IMPROPERLY SECURED BEAM WHICH STRUCK HIM FELL DID NOT PRECLUDE PLAINTIFF FROM BEING AWARDED SUMMARY JUDGMENT IN THIS LABOR LAW 240(1) ACTION (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment in this Labor Law 240(1) action. A beam which was not properly secured fell on plaintiff. The fact that plaintiff could not explain how the beam fell did not preclude the award of summary judgment: Plaintiff’s testimony that a beam fell on […]

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THE JUDGE, PROSECUTOR AND DEFENSE COUNSEL AGREED DEFENDANT SHOULD STEP OUT OF THE COURTROOM WHEN HIS JUSTIFICATION DEFENSE WAS DISCUSSED IN A SIDEBAR CONFERENCE; DEFENSE COUNSEL’S AGREEMENT TO HAVE DEFENDANT STEP OUT OF THE COURTROOM WAS NOT A WAIVER OF DEFENDANT’S RIGHT TO BE PRESENT; CONVICTION REVERSED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Renwick, reversing Supreme Court, determined defendant should have been present for the sidebar conference about the justification defense in this attempted murder by stabbing case. Defendant claimed he had a heart condition triggered by stress which causes his heart to race until he passes out. Defense […]

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