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Entries by Bruce Freeman

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THE DEFENDANT OPHTHALMOLOGICAL SURGEON’S MOTION TO SET ASIDE THE PLAINTIFF’S VERDICT IN THIS MEDICAL MALPRACTICE ACTION WAS PROPERLY DENIED; CRITERIA EXPLAINED; PLAINTIFF LOST SIGHT IN HER RIGHT EYE AFTER CATARACT-REMOVAL SURGERY (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Mendez, determined the defendant’s motion to set aside the plaintiff’s verdict in this medical malpractice action was properly denied. Plaintiff lost sight in her right eye after cataract-removal surgery. The opinion describes the surgeries and the theories presented by the experts in great detail: In a […]

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LESSOR OF THE VEHICLE INVOLVED IN THE REAR-END COLLISION WAS ENTITLED TO SUMMARY JUDGMENT PURSUANT TO THE GRAVES AMENDMENT; SUPREME COURT HAD THE AUTHORITY TO SEARCH THE RECORD AND GRANT SUMMARY JUDGMENT EVEN THOUGH NO MOTION HAD BEEN MADE (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined Bancorp, the lessor of the vehicle leased by Fordham and driven by Fajerman, was entitled to summary judgment in this rear-end collision case pursuant to the Graves Amendment. The First Department noted Supreme Court had the authority to search the record and award summary judgment in the […]

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THE BREACH OF IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED AS DUPLICATIVE OF THE BREACH OF CONTRACT CAUSE OF ACTION; THE APPEAL FROM AN ORDER WHICH WAS NOT THE PRODUCT OF A MOTION ON NOTICE MUST BE DISMISSED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Higgitt which is too comprehensive and detailed to fairly summarize here. determined: (1) the cause of action for breach of implied covenant of good faith and fair dealing was duplicative of the breach of contract cause of action; and (2) an appeal from a supplemental order […]

PLAINTIFF TESTIFIED SHE DID NOT KNOW WHAT CAUSED HER SLIP AND FALL BUT STATED IN HER AFFIDAVIT IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHE SLIPPED ON ICE; THE AFFIDAVIT CREATED A FEIGNED ISSUE OF FACT; DEFENDANT’S MOTION SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff created only a feigned issue of fact in response to defendant’s motion for summary judgment in this slip and fall case: In this action in which plaintiff sustained injuries when she slipped and fell on the sidewalk owned by defendant, her affidavit that she slipped on ice […]

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ELIMINATING THE LONGSTANDING PRACTICE OF REIMBURSING RETIREES’ MEDICARE PART B PREMIUMS IS AN ISSUE THAT MUST BE NEGOTIATED WITH CURRENT EMPLOYEES; PERB DETERMINATION ANNULLED (THIRD DEPT). ​

The Third Department, annulling the determination of the Public Employment Relations Board (PERB), determined eliminating the longstanding practice of reimbursing retirees for Medicare Part B premiums was an issue that must be negotiated with current employees: In its decision, PERB explicitly found that there was a longstanding practice of reimbursing retirees for their Medicare Part […]

PETITIONER, A COURT OFFICER, SLIPPED AND FELL ON A WET FLOOR IN THE COURTHOUSE; THE FALL WAS AN ACCIDENT WITHIN THE MEANING OF THE RETIREMENT AND SOCIAL SECURITY LAW (THIRD DEPT).

The Third Department, reversing the Comptroller, determined petitioner court officer suffered a compensable accident when slipped on a wet floor in the courthouse and may therefore be entitled to accidental disability retirement benefits: Petitioner testified that she was on duty and returning to the security office at the end of her shift when she “slipped […]

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DEFENDANTS NOT LIABLE FOR INJURY SUFFERED WHILE PLAINTIFF WAS DOING WHAT HE WAS HIRED TO DO–REPAIR AN ELEVATOR; ISSUE CONSIDERED EVEN THOUGH RAISED FOR THE FIRST TIME ON APPEAL; IN ADDITION, DEFENDANTS ENTITLED TO THE HOMEOWNER’S EXEMPTION FROM LIABILITY (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined defendants’ motion for summary judgment in this Labor Law 200 and common law negligence action should have been granted. Plaintiff was injured doing the work he was hired to do—repairing an elevator. The issue was considered even though it was first raised on appeal. In addition, defendants […]

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IT WAS ALLEGED DEFENDANTS-ATTORNEYS DID NOT INSTRUCT THE DECEDENT TO REVOKE THE TOTTEN TRUSTS SO THE FUNDS WOULD BE DISTRIBUTED IN ACCORDANCE WITH HER WISHES AS SET OUT IN THE WILL AND TRUST DRAFTED BY DEFENDANTS; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants-attorneys should not have been granted summary judgment in this legal malpractice action brought by the executor of the estate of attorneys’ client. It was alleged two bank accounts were Totten Trusts which passed outside of the will and therefore were not distributed as decedent wished (as was […]

THERE REMAINED QUESTIONS OF FACT WHETHER DEFENDANTS CREATED THE ICY CONDITION AND WHETHER THEY HAD CONSTRUCTIVE NOTICE OF THE CONDITION; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant property-owner’s and defendant property-manager’s motion for summary judgment in this slip and fall action should not have been granted. Plaintiff alleged the defendants created the icy condition and had constructive notice of the condition: … [T]he plaintiff asserted in his bill of particulars that the defendants […]

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PLAINTIFF’S EXPERT RAISED A QUESTION OF FACT WHETHER A DELAY IN DIAGNOSIS AFFECTED THE PROGNOSIS; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the medical malpractice action should not have been dismissed. Plaintiff’s expert raised a question of fact about whether a delay in diagnosis affected the prognosis: On February 26, 2014, the plaintiff’s decedent presented to the emergency department of the defendant Brookdale Hospital Medical Center (hereinafter Brookdale) complaining of […]

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