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PETITIONER CHIROPRACTOR ACKNOWLEDGED RECEIVING PAYMENTS DIRECTLY FROM A MEDICAL EQUIPMENT PROVIDER IN VIOLATION OF THE WORKERS’ COMPENSATION LAW; BECAUSE THERE WERE NO CONTESTED FACTS, THE WORKERS’ COMPENSATION BOARD HAD THE POWER TO REMOVE PETITIONER FROM THE LIST OF AUTHORIZED MEDICAL PROVIDERS WITHOUT HOLDING A HEARING (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Lynch (too detailed to fully summarize here), determined petitioner chiropractor was not entitled to a hearing before the Workers’ Compensation Board removed petitioner from the list of authorized medical providers. Petitioner acknowledged taking payments directly from a supplier of medical equipment, which is a violation of […]

THE CLUB’S MOTION FOR SUMMARY JUDGMENT DISMISSING THE DRAM SHOP ACT CAUSE OF ACTION SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined the club’s (Copacabana”) motion for summary judgment dismissing the Dram Shop Act cause of action should not have been granted. Because the subsequent accident did not occur on the club’s premises, the common law negligence cause of action was properly dismissed: Copacabana was not entitled to summary […]

DEFENDANT IN THIS REAR-END TRAFFIC ACCIDENT CASE DID NOT RAISE A QUESTION OF FACT ABOUT A NON-NEGLIGENT EXPLANATION FOR DEFENDANT’S ACTIONS OR PLAINTIFF’S COMPARATIVE NEGLIGENCE (FIRST DEPT).

The First Department, reversing Supreme Court in this rear-end traffic accident case, determined defendant’s allegation that the plaintiff “stopped short” did not raise a question of fact: The court should have granted plaintiff for summary judgment on liability. Plaintiff established prima facie that defendant was negligent by submitting his affidavit that defendant’s vehicle rear-ended his […]

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PLAINTIFF ALLEGED HE WAS SEXUALLY ABUSED BY A PRIEST WHILE ATTENDING DEFENDANT’S SCHOOL; THE COMPLAINT STATED CAUSES OF ACTION FOR NEGLIGENT HIRING, NEGLIGENT SUPERVISION AND INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff in this Child Victims Act action alleging sexual abuse by a priest while plaintiff was attending defendant’s parish school stated causes of action for negligent hiring, negligent supervision and intentional infliction of emotional distress. “The complaint alleged .* * * the priest … was an employee and/or […]

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THE PROPERTY OWNER, MCWHITE, HAD BEEN DISMISSED FROM THE ORIGINAL FORECLOSURE ACTION AND HER INTEREST IN THE PROPERTY HAD NOT BEEN EXTINGUISHED BY THE JUDGMENT OF FORECLOSURE WHICH FALSELY NAMED HER AS A DEFENDANT; THE REFEREE’S DEED-HOLDER DID NOT STATE A CAUSE OF ACTION FOR REFORECLOSURE AGAINST MCWHITE AND MCWHITE WAS ENTITLED TO SUMMARY JUDGMENT ON HER QUIET TITLE CAUSE OF ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the referee’s deed-holder’s (I & I’s) complaint failed to state a cause of action for reforeclosure (RPAPL 1503, 1523) against McWhite, the owner of the subject property. McWhite had been dismissed from the original foreclosure action because plaintiff never moved for a default judgment. The foreclosure plaintiff was […]

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PLAINTIFF’S DISCOVERY-RELATED ACTIONS WERE NOT WILLFUL AND CONTUMACIOUS SUCH THAT THE COMPLAINT SHOULD HAVE BEEN DISMISSED; HOWEVER PLAINTIFF’S DISCOVERY DELAYS WARRANTED VACATING THE NOTE OF ISSUE AND PAYMENT OF $3000 TO DEFENDANTS’ ATTORNEY (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the complaint in this traffic accident case should not have been dismissed as a discovery sanction. But defendant’s motion to vacate the note of issue due to plaintiff’s delay in disclosing prior relevant injuries should have been granted. In addition the appellate court ordered plaintiff’s attorney to […]

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THE ALLEGEDLY DEFAMATORY STATEMENTS MADE IN A KOREAN-LANGUAGE CHAT ROOM WERE PROTECTED BY QUALIFIED PRIVILEGE, CRITERIA EXPLAINED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the statements alleged to be defamatory were protected by qualified privilege. Plaintiff is an organization established to act as a liaison between the Korean-American community and the NYC Police Department. The statements were made in a Korean language chat group where the management of the organization was discussed: […]

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THE COMPLAINT STATED A CAUSE OF ACTION FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS AGAINST THE DIOCESE; PURSUANT TO THE CHILD VICTIMS ACT, PLAINTIFF ALLEGED HE WAS SEXUALLY ABUSED BY A PRIEST WHEN HE WAS 15 TO 16 (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the defendant Diocese’s motion to dismiss the intentional infliction of emotional distress cause of action should not have been granted. Plaintiff, pursuant to the Child Victims Act, alleged he was sexually abused by a priest when he was 15 to 15 years old: “The elements of intentional infliction […]

THE DEFENDANT INTERPOSED COUNTERCLAIMS OF AN EQUITABLE NATURE AND THEREBY WAIVED A JURY TRIAL ON ALL CAUSES OF ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant’s making equitable counterclaims waived a jury trial on all causes of action: Where, as here, a defendant interposes counterclaims of an equitable nature related to a cause of action asserted in the complaint, the defendant waives a jury trial on all causes of action, whether legal […]

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WHETHER THE SIDEWALK DEFECT WHICH CAUSED PLAINTIFF’S SLIP AND FALL WAS NONACTIONABLE AS “TRIVIAL” IS A QUESTION OF FACT FOR THE JURY; IN OTHER WORDS, DEFENDANT DID NOT DEMONSTRATE THE DEFECT WAS TRIVIAL AS A MATTER OF LAW (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion for summary judgment asserting the sidewalk defect which caused plaintiff’s slip and fall was trivial should not have been granted: … [P]laintiff allegedly was injured when she tripped and fell due to a height differential between two sidewalk slabs abutting premises owned by the defendant … […]

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