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Entries by Bruce Freeman

QUESTIONS OF FACT WHETHER THE DEFENDANT BUS DRIVER SAW WHAT SHOULD HAVE BEEN SEEN AND WHETHER THE EMERGENCY DOCTRINE APPLIED TO THIS REAR-END COLLISION CASE; THE BUS WAS BEHIND PLAINTIFF’S SCOOTER AND BOTH THE BUS AND THE SCOOTER APPARENTLY CHANGED LANES AT THE SAME TIME (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined there were questions of fact whether defendant bus driver (Payne) failed to see what should have been seen and whether the emergence doctrine applied to this rear-end collision case. Plaintiff was on a motor scooter in front of the bus and both the bus and the scooter […]

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PROBABLE CAUSE FOR ARREST IS A COMPLETE DEFENSE TO CAUSES OF ACTION FOR FALSE ARREST, FALSE IMPRISONMENT AND BATTERY STEMMING FROM THE ARREST (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court noted that probable cause for arrest is a complete defendant to causes of action for false arrest, false imprisonment and battery association with the arrest: The Supreme Court should have granted those branches of the municipal defendants’ motion which were for summary judgment dismissing the seventh, eighth, and […]

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PLAINTIFF REAL ESTATE BROKER DID NOT ESTABLISH IT WAS ENTITLED TO A BROKERAGE FEE; THE BROKERAGE AGREEMENT EXPIRED BY ITS OWN TERMS BEFORE THE LEASE TOOK EFFECT (SECOND DEPT).

The Second Department, reversing Supreme Court after a bench trial, determined plaintiff real estate broker was not entitled to a brokerage commission: “In order to recover a real estate brokerage commission, [a] broker must establish: (1) that [it] is duly licensed, (2) that [it] had a contract, express or implied, with the party to be […]

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THE BANK’S PROOF OF COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 1304 IN THIS FORECLOSURE ACTION WAS INSUFFICIENT; THE BUSINESS RECORDS REFERRED TO IN THE AFFIDAVIT WERE NOT PRODUCED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court in this foreclosure action, determined the bank’s proof of compliance with the notice requirements of RPAPL 1304 was insufficient. The court noted that, under the facts, standing to contest the bank’s compliance with RPAPL 1304 was personal to each borrower, one borrower could not assert that defense on […]

PLAINTIFF WAS INJURED WHEN THE ARM AND FOOT PEDAL OF AN ELLIPTICAL MACHINE AT DEFENDANT’S GYM BROKE OFF; DEFENDANT DID NOT DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF THE DEFECT OR THE APPLICABILITY OF THE ASSUMPTION OF THE RISK DOCTRINE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant gym was not entitled to summary judgment in this personal injury action. Plaintiff alleged the arm and foot pedal of the elliptical machine she was using detached. Defendant did not demonstrate that it did not have constructive notice of the defect or that plaintiff assumed the risk […]

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TO BE ENTITLED TO SUMMARY JUDGMENT BASED ON A PATIENT’S FAILURE TO SHOW UP FOR AN INDEPENDENT MEDICAL EXAMINATION (IME), THE NO-FAULT INSURER MUST SHOW BOTH THAT THE PATIENT DID NOT SHOW UP AND THE REQUEST FOR THE IME AND THE SCHEDULING OF THE IME COMPLIED WITH THE REQUIRED TIME-FRAMES (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff-insurer’s motion for summary judgment in this no-fault insurance action should not have been granted. Although an insurer need not pay no-fault claims if the patient did not appear for an independent medical examination (IME), in order to warrant an award of  summary judgment the insurer must demonstrate […]

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SUPREME COURT, IN THE CONTEXT OF A MOTION TO DISMISS, SHOULD NOT HAVE DETERMINED AS A MATTER OF LAW THAT THE DEFENDANTS WERE NOT “AFFILIATES” WITHIN THE MEANING OF THE LANGUAGE OF A RELEASE (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined Supreme Courts should have simply denied the motion to dismiss instead of deciding what parties were included in the term “affiliates” in the release at issue: Supreme Court erred in finding, as a matter of law, that the word “affiliates” in the release entered into between plaintiffs […]

NEITHER THE BUILDING OWNER NOR THE PROSPECTIVE BUILDING OWNER HAD SUPERVISORY CONTROL OVER THE PREMISES OR THE WORK, INCLUDING THE WORK OF PLAINTIFF AND HIS CO-WORKER WHO APPARENTLY MOPPED THE FLOOR WHERE PLAINTIFF SLIPPED AND FELL; THE LABOR LAW 200 AND COMMON LAW NEGLIGENCE CAUSES OF ACTION AGAINST THE OWNER AND PROSPECTIVE OWNER SHOULD HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined the Labor Law 200 and common law negligence causes of action against the building owner (Grand) and the prospective purchaser of the building (Empire) should have been dismissed. Plaintiff slipped and fell on a wet floor which apparently had just been mopped by a co-worker. Neither Grand […]

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THE NYC HUMAN RESOURCES ADMINISTRATION (HRA) WAS NOT ENTITLED TO ANY OF THE PROCEEDS OF PLAINTIFF’S CAR-ACCIDENT SETTLEMENT BECAUSE THE SETTLEMENT DID NOT INCLUDE MEDICAL EXPENSES; PLAINTIFF WAS BARRED FROM RECOVERY OF MEDICAL COSTS BECAUSE HER BASIC ECONOMIC LOSS WAS LESS THAN $50,000 (INS LAW 5102) (FIRST DEPT).

The First Department, reversing Supreme Court, determined no part of plaintiff’s automobile accident settlement was available to satisfy a medical lien held by the NYC Human Resources Administration (HRA) because the settlement did not include medical expenses: HRA asserted a lien on the proceeds of plaintiff’s settlement of an action arising out of an automobile […]

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A STATEMENT FROM THE DEPARTMENT OF TRANSPORTATION AUTHENTICATING PHOTOGRAPHS OF PETITIONER’S CAR RUNNING A RED LIGHT NEED NOT BE NOTARIZED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the city (NYC) was not required to submit a notarized statement from the Department of Transportation authenticating photographs of petitioner’s car running a red light: For over half a century, the legislature has consistently provided for prima facie liability for minor traffic offenses to be established by a […]

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