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Entries by Bruce Freeman

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PLAINTIFF RAISED A QUESTION OF FACT WHETHER THE STEPS ON WHICH SHE SLIPPED AND FELL, ALTHOUGH ON A PUBLIC RIGHT-OF-WAY, WERE SUBJECT TO A SPECIAL USE BY THE ABUTTING PROPERTY OWNER (POTENTIALLY RENDERING THE ABUTTING PROPERTY OWNER LIABLE) (THIRD DEPT).

The Third Department, reversing Supreme Court, determined plaintiff in this slip and fall case should have been allowed to present evidence of defendant synagogue’s special use of steps which were part of the public right-of-way but which lead to the synagogue entrance. Plaintiff slipped on ice on the “public right-of-way” portion of the steps and […]

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THE BOARD SHOULD NOT HAVE RELIED ON THE OPINION OF AN EXPERT WHO DID NOT FOLLOW THE IMPAIRMENT GUIDELINES BY REVIEWING THE UPDATED X-RAYS OF CLAIMANT’S HIP (THIRD DEPT). ​

The Third Department, reversing the Workers’ Compensation Board, determined the board relied on the opinion of an expert, Petroski, who did not follow the impairment guidelines by consulting the updated x-rays of claimant’s hip: Nowhere in his … report … does Petroski … indicate that he had obtained and considered and reviewed updated X rays, […]

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ALTHOUGH THE DOCTOR WAS AT WORK AT THE HOSPITAL WHEN HE WAS SHOT DURING A MASS SHOOTING, HIS INJURY WAS NOT WORK-RELATED WITHIN THE MEANING OF THE WORKERS’ COMPENSATION LAW (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, in a full-fledged opinion by Justice Reynolds Fitzgerald, determined the shooting of a doctor, Justin Timperio, although it occurred while Timperio was working at the hospital, was not a work-related injury within the meaning of the Workers’ Compensation Law. Timperio had brought a negligence lawsuit against the […]

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ALTHOUGH CLAIMANT DID NOT SUCCEED IN DEMONSTRATING HER CONDITION HAD WORSENED SUCH THAT SHE WAS ENTITLED TO INCREASED BENEFITS, HER COUNSEL’S FEES SHOULD NOT HAVE BEEN RESCINDED BY THE WORKERS’ COMPENSATION BOARD (THIRD DEPT). ​

he Third Department, reversing (modifying) the Workers’ Compensation Board, determined the rescission of the award of claimant’s counsel’s fee on the ground that the claim was unsuccessful was arbitrary and capricious. Claimant was unable to show her condition had worsened entitling her to increased benefits: The initial application submitted by claimant’s counsel, which sets forth […]

THE LENGTH OF THE SENTENCE WAS NOT PRONOUNCED; RESENTENCING IS REQUIRED (THIRD DEPT).

The Third Department, reversing County County, determined the failure to pronounce the length of sentence required resentencing: “CPL 380.20 requires that courts must pronounce sentence in every case where a conviction is entered. When the sentencing court fails to orally pronounce a component of the sentence, the sentence must be vacated and the matter remitted […]

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THE WRONGFUL DEATH CAUSE OF ACTION AGAINST DEFENDANT NURSING HOME SHOULD NOT HAVE BEEN DISMISSED; CONFLICTING EXPERT OPINIONS RAISED A QUESTION OF FACT (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined the wrongful death cause of action against defendant nursing home should not have been dismissed. Conflicting expert opinions raised a question of fact: Defendant made a prima facie showing that it was not liable for the decedent’s injuries and death under Public Health Law § 2801-d(1) through […]

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COMPLAINT ALLEGATIONS OF A FRAUDULENT CONVEYANCE MADE “UPON INFORMATION AND BELIEF” DO NOT STATE A CAUSE OF ACTION (FIRST DEPT).

The First Department, reversing Supreme Court, determined “upon information and belief” complaint allegations of a fraudulent conveyance did not state a cause of action: The complaint fails to state a cause of action for constructive fraudulent conveyance under former Debtor and Creditor Law §§ 273 and 274 … . Defendants are members of S. Land […]

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DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL; COUNSEL SAID A GUILTY PLEA MAY RESULT IN DEPORTATION WHEN DEPORTATION WAS MANDATORY (FIRST DEPT).

The First Department determined defendant did not receive effective assistance of counsel because he was told pleading guilty may result in deportation when deportation was mandatory: The existing record sufficiently demonstrates that defendant was deprived of effective assistance of counsel (see Padilla v Kentucky, 559 US 356, 369, 374 [2010]) when his attorney failed to […]

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DEFENDANT WAS ENTITLED TO A HEARING ON HER MOTION FOR RESENTENCING WHICH ALLEGED SHE WAS THE VICTIM OF DOMESTIC VIOLENCE AT THE TIME OF THE COMMISSION OF THE CRIME (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant was entitled to a hearing on her motion for resentencing which alleged she was a victim of domestic violence at the time of the commission of the crime: Provided that the defendant meets certain threshold eligibility requirements pertaining to, inter alia, the length of incarceration and the […]

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PLAINTIFF IN THIS FORECLOSURE ACTION DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 1304, INCLUDING THE “SINGLE ENVELOPE” RULE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff in the foreclosure action did not demonstrate compliance with the notice and “one envelope” requirements of RPAPL 1304: … [P]laintiff failed to demonstrate … that it strictly complied with the mailing requirements of RPAPL 1304. The affidavit of Kyle Lucas, a senior loan analyst employed by the […]

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