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Entries by Bruce Freeman

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PETITIONER SOUGHT TO DEMONSTRATE THAT HIS DECEASED MOTHER DID NOT HAVE THE CAPACITY TO EXECUTE A DOCUMENT DESIGNATING RESPONDENT AS HER AGENT TO CONTROL THE DISPOSITION OF HER REMAINS; PETITIONER SUBMITTED PROOF HIS MOTHER HAD BEEN DIAGNOSED WITH DEMENTIA, BUT DEMENTIA IS NOT THE EQUIVALENT OF INCOMPETENCE OR INCAPACITY; THE PETITION SHOULD HAVE BEEN DISMISSED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, held that the petition pursuant to Public Health Law 4201 for a determination concerning the disposition of petitioner’s deceased mother’s remains should have been dismissed. The deceased was also the mother of the respondent in this action. The issue was whether the deceased had the capacity to execute a […]

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PLAINTIFF’S FAILURE TO SCHEDULE A 50-H HEARING AFTER ADJOURNING IT TWICE REQUIRED DISMISSAL OF THE RELEVANT CAUSES OF ACTION IN THIS DEFAMATION SUIT AGAINST A COUNTY EXECUTIVE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined plaintiff’s failure to schedule a 50-h hearing after adjourning it twice required dismissal (without prejudice) of certain causes of action in this defamation suit against a county executive: Supreme Court erred in denying the motion insofar as it sought to dismiss the first through fourth causes of action […]

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IN THIS DOG-BITE CASE, VETERINARY RECORDS ARE DISCOVERABLE BY SUBPOENA (FOURTH DEPT).

The Fourth Department, in this dog bite case, determined veterinary records are not protected by Education Law 6714 and are discoverable: Education Law § 6714 (1) provides that, “[u]pon written request from the owner of an animal which has received treatment from or under the supervision of a veterinarian, such veterinarian shall provide to such […]

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DEFENDANTS DID NOT DEMONSTRATE THEY DID NOT CREATE OR HAVE CONSTRUCTIVE KNOWLEDGE OF THE PUDDLE ON THE FLOOR WHERE PLAINTIFF SLIPPED AND FELL; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined defendants (Niagara County Jail and County Sheriff) did not demonstrate they did not create or have constructive notice of the puddle on the floor where plaintiff slipped and fell: … [D]efendants failed to establish that they did not create the dangerous condition and thus that the court […]

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THE QUALIFIED DOMESTIC RELATION ORDER (QDRO) AS DESCRIBED IN THE STIPULATION OF SETTLEMENT INCORPORATED BUT NOT MERGED INTO THE JUDGMENT OF DIVORCE CANNOT BE MODIFIED BY THE COURT; NO APPEAL LIES OF RIGHT FROM A QDRO, AN APPLICATION FOR LEAVE TO APPEAL MUST BE MADE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the qualified domestic relations order (QDRO) should not have been modified by the court because the stipulation of settlement, which was incorporated but not merged into the judgment of divorce, controls. The Fourth Department noted that no appeal lies of right from a QRDO but it treated the […]

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AFTER THE STATUTE OF LIMITATIONS HAD RUN IN THIS SLIP AND FALL CASE PLAINTIFF SOUGHT TO AMEND HER COMPLAINT TO ADD PARTIES UNDER THE “RELATION BACK” DOCTRINE; HOWEVER THE ADDED PARTIES DID NOT MEET THE “UNITY OF INTEREST” REQUIREMENT; THE MOTION TO AMEND SHOULD HAVE BEEN DENIED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the plaintiff’s motion to amend the complaint after the statute of limitations had run to add parties under a “relation back” doctrine should not have been granted. The decision includes comprehensive discussions of the “unity of interest” component of the “relation back” doctrine which are too detailed to […]

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CONFLICTING EXPERT OPINIONS PRECLUDED DISMISSAL OF MEDICAL MALPRACTICE CAUSES OF ACTION STEMMING THE ALLEGED PREMATURE DISCHARGE OF PLAINTIFF FROM EMERGENCY CARE AFTER SHE EXPERIENCED SYMPTOMS OF A STROKE (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined plaintiff’s medical malpractice causes of action against the doctor who discharged her from emergency care and the hospital should not have been dismissed because the expert affidavits presented conflicting opinions. Plaintiff experienced symptoms consistent with a stroke and went to the hospital. An MRI was done but […]

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GIVEN WHAT THE INFORMANT TOLD THE POLICE, THE FACT THAT DEFENDANT GRABBED AT HIS WAISTBAND WHEN THE POLICE APPROACHED HIM ON THE STREET PROVIDED REASONABLE SUSPICION THE DEFENDANT HAD A WEAPON AND THEREBY JUSTIFIED PURSUIT; THE DISSENT ARGUED THE INFORMATION FROM THE INFORMANT WAS NOT ENOUGH BY ITSELF AND THE PEOPLE DID NOT PROVE DEFDENDANT GRABBED AT HIS WAISTBAND BEFORE OR AFTER THE CHASE STARTED (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, determined the police had “reasonable suspicion” to pursue defendant as he fled when the police approached on the street. The defendant discarded a handgun as he fled: … [P]olice responded to a 911 call that a parolee wanted on an outstanding warrant and who was known to possess […]

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PLAINTIFF ALLEGED DEFENDANT INSURER BREACHED THE INSURANCE CONTRACT BY FAILING TO PAY THE FULL AMOUNT OF THE COVERAGE; THAT ALLEGATION DOES NOT SUPPORT AN ADDITIONAL CAUSE OF ACTION FOR BREACH OF THE IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the cause of action for breach of the implied covenant of good faith and fair dealing duplicated the breach of contract cause of action and should have been dismissed. Plaintiff alleged defendant insurer failed to pay her the full amount of the supplemental uninsured motorist (SUM) coverage: In […]

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THE CASUALTY CLAUSE IN THE LEASE DID NOT APPLY TO EXCUSE DEFENDANT-TENANT’S NONPAYMENT OF RENT DURING THE COVID PANDEMIC; THE FORCE MAJEURE, FRUSTRATION OF PURPOSE AND UNCLEAN HANDS DOCTRINES ALSO DID NOT APPLY (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court, determined (1) the casualty clause in the lease did not excuse defendant’s failure to pay rent during the COVID pandemic, (2) the force majeure doctrine did not apply, (3) and the frustration-of-purpose and unclean-hands doctrines did not apply: … [W]e conclude that plaintiff established as a matter of law […]

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