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Entries by Bruce Freeman

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IN THIS BICYCLE-PEDESTRIAN COLLISION CASE WHERE THERE WAS A VIDEO OF THE INCIDENT, DEFENDANT’S EXPERT DEMONSTRATED, USING FACTS IN THE RECORD, THAT DEFENDANT BICYCLIST HAD THE RIGHT OF WAY, WAS TRAVELLING AT A REASONABLE SPEED, AND WAS NOT ABLE TO AVOID THE COLLISION WHEN PLAINTIFF STEPPED OFF THE CURB; PLANTIFF’S EXPERT’S OPINION TO THE CONTRARY WAS NOT SUPPORTED BY FACTS IN THE RECORD; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT). ​

The Frist Department, reversing Supreme Court, over a dissent, determined defendant bicyclist’s motion for summary judgment in this bicycle-pedestrian collision case should have been granted. Thee was a video of the incident. Defendant had the green light when plaintiff stepped off the curb into the bike lane. Defendant’s expert presented evidence defendant was travelling at […]

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PLAINTIFFS ALLEGED THE RESIDENTIAL-MORTGAGE-BACKED-SECURITIES ISSUED BY THE DEFENDANT TRUSTEES WERE WORTHLESS BECAUSE OF DEFENDANTS’ BREACHES OF CONTRACTUAL, FIDUCIARY AND STATUTORY DUTIES; MOST (BUT NOT ALL) OF DEFENDANTS’ MOTIONS TO DISMISS WERE DENIED BASED UPON CONTRACT-INTERPRETATION PRINCIPLES (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court in this residential-mortgage-backed-securities case, over an extensive two-justice partial dissent, determined certain post-Event of Default breach of contract and breach of fiduciary duty claims should have been dismissed, and the pre-Event of Default document defect repurchase enforcement claims should not have been dismissed. “Plaintiffs purchased residential mortgage-backed securities […]

PLAINTIFF WAS A PASSENGER IN DEFENDANT MC RAE’S VEHICLE WHEN MC RAE’S VEHICLE WAS STRUCK FROM BEHIND; THE ALLEGATION THAT MC RAE STOPPED FOR NO APPARENT REASON RAISED A QUESTION OF FACT WHETHER MC CRAE WAS COMPARATIVELY NEGLIGENT; COMPARATIVE NEGLIGENCE WILL PRECLUDE SUMMARY JUDGMENT WITH RESPECT TO CROSS CLAIMS BETWEEN DEFENDANTS (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined defendant driver’s (McRae’s) motion for summary judgment in this rear-end collision case should not have been granted. Plaintiff was a passenger in defendant McRae’s vehicle. McRae alleged his vehicle was stopped when it was struck by defendant NYC Transit Authority’s (NYCTA’s) bus (driven by defendant Pena). Defendants […]

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DEFENDANT MADE A LEFT TURN IN THE PATH OF PLAINTIFF’S VEHICLE IN VIOLATION OF THE VEHICLE AND TRAFFIC LAW; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON LIABILITY AND DISMISSING THE COMPARATIVE NEGLIGENCE AFFIRMATIVE DEFENSE SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment on liability and dismissing the comparative negligence affirmative defense in this intersection traffic accident case should have been granted: … [T]he plaintiff established his prima facie entitlement to judgment as a matter of law on the issue of liability by submitting his deposition […]

THE LEG OF A LARGE DECORATIVE THRONE IN DEFENDANT’S BAR WAS OPEN AND OBVIOUS AND THEREFORE WAS NOT AN ACTIONABLE TRIPPING HAZARD; PLAINTIFF HAD FREQUENTED THE BAR AND THE THRONE WAS READILY OBSERVABLE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the leg of a large decorative throne in defendant’s bar was open and obvious and therefore was not an actionable tripping hazard: … [T]he defendant established … that the large decorative throne that allegedly caused the plaintiff to fall was open and obvious and not inherently dangerous … […]

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HERE THE DEFENDANT DID NOT COMPLETE THE TREATMENT REQUIRED BY THE PLEA AGREEMENT; THE GUILTY PLEA WAS THEREFORE INDUCED BY AN UNFULFILLED PROMISE WHICH USUALLY REQUIRES THAT THE PLEA BE VACATED; HERE SUPREME COURT FELT DEFENDANT SHOULD NOT HAVE BEEN TERMINATED BY THE TREATMENT PROGRAM AND PROPERLY EXERCISED DISCRETION IN FASHIONING A SENTENCE MUCH LESS THAN THAT REQUIRED BY THE PLEA AGREEMENT, LEAVING THE GUILTY PLEA IN PLACE (SECOND DEPT).

The Second Department determined Supreme Court properly exercised discretion in the face of defendant’s failure to complete treatment as required by the plea agreement. The court found that, although defendant had relapsed during the treatment for alcoholism, the relapse did not justify his being terminated by the program. Therefore the court did not vacate defendant’s […]

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PETITIONER WAS ISSUED A PERMIT TO CONSTRUCT COMMERCIAL SPACE WITH 557 PARKING SPACES; THE PERMIT WAS REVOKED BECAUSE THE TOWN CODE REQUIRED 624 PARKING SPACES; BECAUSE THE PERMIT WAS INVALID, PETITIONER COULD NOT INVOKE THE “DOCTRINE OF VESTED RIGHTS” FOR A VARIANCE ALLOWING 557 SPACES (SECOND DEPARTMENT).

The Second Department, reversing Supreme Court, determined the petitioner was not entitled to a variance pursuant to the doctrine of vested rights. Petitioner had been issued a permit to build commercial space which included 557 parking spaces. The town subsequently revoked the permit because the town code required 624 parking spaces. Petitioner then applied for […]

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PLAINTIFF, A SCHOOL PSYCHOLOGIST, WAS ASSAULTED BY AN AUTISTIC STUDENT; THE NEGLIGENT-PARENTAL-SUPERVISION CAUSE OF ACTION AGAINST THE STUDENT’S PARENTS SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the “negligent parental supervision” cause of action against the parents of an autistic child who assaulted plaintiff school psychologist should not have been dismissed. In addition, the parents did not demonstrate their son was, due to his disability, incapable of being liable for negligence or assault. The facts […]

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QUESTIONS OF FACT WHETHER DEFENDANT BUS DRIVER WAS NEGLIGENT; PLAINTIFF’S HAND WAS CAUGHT IN THE CLOSED DOOR OF THE BUS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined there were questions of fact whether the driver of the bus negligent in closing the door on plaintiff’s hand and in failing to open the door to release plaintiff’s hand: A “defendant moving for summary judgment in a negligence action has the burden of establishing, prima facie, that […]

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DEFENDANT MADE A LEFT TURN IN FRONT OF PLAINTIFF IN VIOLATION OF THE VEHICLE AND TRAFFIC LAW; PLAINTIFF SHOULD HAVE BEEN AWARDED SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment in this intersection traffic accident case. Defendant attempted to make a left turn in front of plaintiff’s vehicle from the middle lane, cutting off plaintiff. The court noted that a plaintiff’s comparative negligence is not a bar to summary judgment: The accident […]

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