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Entries by Bruce Freeman

PETITIONER POLICE OFFICER’S SITTING IN A DESK CHAIR (WHICH WAS SUBSEQUENTLY FOUND TO BE BROKEN), LEANING BACK, FALLING BACKWARD AND INJURING HIS HEAD CONSTITUTED AN “ACCIDENT” WITHIN THE MEANING OF THE RETIREMENT AND SOCIAL SECURITY LAW (THIRD DEPT).

The Third Department, reversing the Comptroller, over a dissent, annulled the determination that petitioner police officer was not injured in an “accident” within the meaning of the Retirement and Social Security Law. Petitioner alleged he sat in a desk chair, leaned back and fell over striking his head. There was evidence the chair was broken: […]

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THE DOCTRINE OF COLLATERAL ESTOPPEL DID NOT PRECLUDE THIS ACTION TO DETERMINE THE VALIDITY OF THE PURPORTED 2017 ELECTION OF THE BOARD OF DIRECTORS; THE PRIOR ACTION CONCERNED ONLY THE VALIDITY OF THE PURPORTED 2019 ELECTION OF THE BOARD OF DIRECTORS (THIRD DEPT).

The Third Department, reversing Supreme Court, held the doctrine of collateral estoppel did not preclude this Sullivan County action, which sought to determine whether a 2017 election of the board of dIrectors of plaintiff religious corporation was valid. A prior action in Kings County determined a 2019 election of the board of directors of the […]

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DEFENDANTS ARGUED PLAINTIFF WAS NOT AN EMPLOYEE IN THE WORKERS’ COMPENSATION PROCEEDING; HERE THE DEFENDANTS ARGUED PLAINTIFF WAS AN EMPLOYEE AND HIS REMEDY WAS LIMITED TO WORKERS’ COMPENSATION; THE DOCTRINE OF JUDICIAL ESTOPPEL PRECLUDED THE WORKERS’ COMPENSATION AFFIRMATIVE DEFENSE IN THIS ACTION (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, over a dissent, determined the judicial estoppel doctrine applied and plaintiff’s motion to dismiss the workers’ compensation affirmative defense in this personal injury action should have been granted. Plaintiff was injured on the job. In the Workers’ Compensation proceeding defendants argued plaintiff was an not an employee. In […]

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THE EVIDENCE SUPPORTED THE DEFENSE VERDICT IN THIS ALL-TERRAIN VEHICLE ACCIDENT CASE; TWO DISSENTERS ARGUED THE 14-YEAR-OLD DEFENDANT DRIVER ACKNOWLEDGED HIS NEGLIGENCE ON THE STAND (THIRD DEPT).

The Third Department, over a partial dissent, determined the jury verdict finding the 14-year-old defendant driver of an all-terrain vehicle (a Gator) was not negligent was supported by the evidence. The Gator overturned and the 16-year-old passenger was injured. The defendant’s and plaintiff’s descriptions of the accident conflicted. The dissenters argued the defendant acknowledged he […]

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DESPITE THE ORDER OF PROTECTION EXCLUDING RESPONDENT FROM THE HOME, THE PETITIONER PRESENTED SUFFICIENT EVIDENCE RESPONDENT WAS A PERSON LEGALLY RESPONSIBLE FOR THE CHILD; PEITIONER DEMONSTRATED RESPONDENT HAD NEGLECTED THE CHILD BY COMMITTING DOMESTIC VIOLENCE IN THE CHILD’S PRESENCE (FIRST DEPT).

The First Department, reversing Family Court, determined the evidence demonstrated respondent was a person legally responsible (PLR) for the child and respondent neglected the child by committing domestic violence in the child’s presence: Petitioner demonstrated by a preponderance of the evidence that respondent was a person legally responsible (PLR) for the subject child, as well […]

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THE TRIAL JUDGE SHOULD HAVE GIVEN THE ADVERSE INFERENCE CHARGE WHICH HAD BEEN ORDERED AS A DISCOVERY SANCTION RE: A MISSING SURVEILLANCE TAPE; JURY VERDICT SET ASIDE (FIRST DEPT). ​

The First Department, reversing Supreme Court and setting aside the verdict, determined the trial judge should have given the adverse inference charge with respect to a missing video surveillance tape: … [T]he court erred in declining to give an adverse inference charge with respect to a missing video surveillance tape. An order stating that plaintiff […]

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PLAINTIFF WAS AN EMPLOYEE OF THE CONTRACTOR DEFENDANT HOMEOWNER HIRED TO BUILD A NEW STAIRCASE; PLAINTIFF WAS INJURED BY A PROTRUDING SCREW ON THE NEW STAIRCASE; DEFENDANT WAS NOT LIABLE; THE HOMEOWNER DID NOT CREATE THE CONDITION, DID NOT SUPERVISE THE CONTRACTOR’S WORK, AND DID NOT HAVE NOTICE OF THE CONDITION (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined defendant homeowner was not liable to plaintiff, an employee of the contractor defendant hired to replace a staircase. Plaintiff was injured by a protruding screw attached to the new staircase: … [D]efendant established prima facie that he did not create the allegedly unsafe condition in the unfinished staircase […]

THIRD-DEGREE POSSESSION OF A CONTROLLED SUBSTANCE (PENAL LAW 220.16 (12)) IS NOT A LESSER INCLUDED OFFENSE OF THIRD-DEGREE POSSESSION OF A CONTROLLED SUBSTANCE (PENAL LAW 220.16 (1)); GUILTY PLEA VACACTED (FIRST DEPT).

The First Department, reversing Supreme Court and vacating defendant’s guilty plea, determined defendant pled to an offense which was not a lesser included offense of any offense in the indictment: … [W]here the indictment charges two or more offenses in separate counts, a defendant may enter a plea of guilty to one or more of […]

A PRE-JOINDER MOTION FOR SUMMARY JUDGMENT MUST BE DENIED (FIRST DEPT).

The First Department, reversing Supreme Court, noted that a pre-joinder motion for summary judgment must be denied: The Court of Appeals has noted that the rule barring a pre-joinder motion for summary judgment is strictly applied (City of Rochester v Chiarella, 65 NY2d 92, 101 [1985]). While CPLR 3211(c) permits the court, on notice to […]

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DEFENDANT HAD WITHHELD PAYMENT ON THE CONTRACT AS AN OFFSET FOR THE LIQUIDATED DAMAGES PROVISION OF THE CONTRACT; THE AWARD OF LIQUIDATED DAMAGES TO THE DEFENDANT THEREFORE CONSTITUTED A DOUBLE RECOVERY (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined defendant should not have been awarded summary judgment on the liquidated damages counterclaim because defendant had withheld payment on the contract as an offset to the liquidated damages: Supreme Court should have denied summary judgment in defendant’s favor on the liquidated damages counterclaim. To be sure, the liquidated […]

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