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Entries by Bruce Freeman

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DEFENDANT ALLEGED ITS PRINCIPAL PLACE OF BUSINESS WAS IN NASSAU COUNTY BUT NEVER AMENDED ITS CERTIFICATE OF INCORPORATION WHICH DESIGNATED ITS PRINCIPAL PLACE OF BUSINESS AS QUEENS COUNTY; DEFENDANT’S MOTION TO CHANGE THE VENUE OF THIS SLIP AND FALL CASE FROM QUEENS TO NASSAU COUNTY SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant in this slip and fall case (Valley Park) did not present sufficient evidence to support a change of venue from Queens County to Nassau County: “To effect a change of venue pursuant to CPLR 510(1), a defendant must show that the plaintiff’s choice of venue is improper […]

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THE PRIVATE RIGHT OF ACTION CREATED BY THE PUBLIC HEALTH LAW APPLIES TO “RESIDENTIAL HEALTH CARE FACILITIES,” NOT TO “ASSISTED LIVING FACILITIES” (SECOND DEPT).

The Second Department determined the Public Health Law 2801-d and 2803-c causes of action against defendant “assisted living facility” should have been dismissed. The private right of action created by the Public Health Law applies only to “residential health care facilities: … [T]he plaintiff concedes that the facility in which Kramer was a resident was […]

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ALTHOUGH DEFENDANT THEATER MANAGER WAS NOT A SECURITY GUARD, HIS RESPONSIBILITIES INCLUDED DEALING WITH UNRULY PATRONS AND KEEPING THE PREMISES SAFE; THERE WAS A QUESTION OF FACT WHETHER HE WAS ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT WHEN HE THREATENED A PATRON WITH A PELLET GUN; THEREBY RAISING A QUESTION OF FACT WHETHER THE THEATER WAS LIABLE FOR THE MANAGER’S ACTIONS UNDER THE DOCTRINE OF RESPONDEAT SUPERIOR (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, determined the defendant movie- theater manager, Adams, may have been acting within the scope of his employment by the theater, AMC, when he threatened plaintiff, a theater patron, with a pellet gun. Therefore AMC’s motion for summary judgment should not have been granted: … [T]he general manager of […]

THERE WAS A QUESTION OF FACT WHETHER THE DEFENDANT DEPARTMENT STORE SHOULD HAVE BEEN AWARE THE PAINT USED ON THE PARKING LOT SURFACE BECAME SLIPPERY WHEN WET AND WAS NOT APPROPRIATE FOR PEDESTRIAN-TRAFFIC AREAS (SECOND DEPT). ​

The Second Department, reversing Supreme Court in this slip and fall case, determined there was a question of fact whether the department store, Costco, should have been aware that paint used in its parking lot was slippery when wet: “A defendant may not be held liable for the application of ‘wax, polish, or paint to […]

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THE NYC WATER BOARD DETERMINED PETITIONER WAS NOT ENTITLED TO A RETROACTIVE REDUCTION IN SEWER CHARGES BUT WAS NOT NAMED AS A RESPONDENT IN PETITIONER’S ARTICLE 78 ACTION; THE WATER BOARD MUST BE ADDED AS A NECESSARY PARTY (SECOND DEPT).

The Second Department noted that the NYC Water Board was a necessary party in the Article 78 contesting the Board’s ruling on sewer charges. The Article 78 named only the NYC Department of Environmental Protection: … [T]he appellants correctly contend that the Water Board should be joined as a necessary party to this proceeding. “Persons […]

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THE “LACK OF INFORMED CONSENT” CAUSE OF ACTION IN THIS MEDICAL MALPRACTICE SUIT SHOULD NOT HAVE BEEN DISMISSED; THERE WAS NO EVIDENCE PLAINTIFF INSISTED ON THE PROCEDURE DESPITE THE RISKS OR DECLINED ANY PROFFERED EXPLANATION OF THE RISKS (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court) determined the “lack of informed consent” to back surgery (implantation of an X-STOP device) should not have been dismissed: As a defense to a medical malpractice action premised upon lack of informed consent, a practitioner may proffer evidence that “the patient assured the medical . . . practitioner […]

DEFENDANTS DIRECTED PLAINTIFF TO REMOVE PAINT BY SPRAYING LACQUER WHICH APPARENTLY LED TO AN EXPLOSION; THERE ARE QUESTIONS OF FACT WHETHER DEFENDANTS SUFFICIENTLY CONTROLLED OR SUPERVISED PLAINTIFF’S WORK SUCH THAT THE HOMEOWNER’S EXEMPTION TO A LABOR LAW 241 (6) CAUSE OF ACTION DID NOT APPLY, AND WHETHER THE DEFENDANTS WERE LIABLE UNDER LABOR LAW 200 AND COMMON-LAW NEGLIGENCE THEORIES (SECOND DEPT).

The Second Department determined there were questions of fact whether the defendants were entitled to the homeowner’s exemption from Labor Law 241 (6) liability, and whether they sufficiently controlled or supervised plaintiff’s work to be liable under Labor Law 200 or a common-law negligence theory. Plaintiff was injured in an explosion when, at the direction […]

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IN A FORECLOSURE PROCEEDING, THE REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL) 1304 NOTICE MUST BE SENT TO THE BORROWER IN A SEPARATE ENVELOPE; HERE OTHER NOTICES WERE INCLUDED IN THE ENVELOPE ALONG WITH THE RPAPL 1304 NOTICE; DEFENDANT’S SUMMARY JUDGMENT MOTION WAS PROPERLY GRANTED (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Duffy, determined, in a foreclosure action, the requirement that the RPAPL 1304 notice be sent to the borrower “in a separate envelope from any other mailing or notice” must be strictly complied. Because other notices were included in the same envelope, the defendant’s motion for summary […]

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PLAINTIFF’S DECEDENT COMMITTED SUICIDE BY JUMPING FROM THE GEORGE WASHINGTON BRIDGE; THE COMPLAINT ALLEGING PORT AUTHORITY FAILED TO MAINTAIN THE BRIDGE IN A SAFE CONDITION SHOULD NOT HAVE BEEN DISMSSED (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined the complaint alleging defendant Port Authority breached its duty to maintain the George Washington Bridge (GWB) in a reasonably safe condition must be reinstated. Plaintiff’s decedent committed suicide by jumping from the bridge: Plaintiff’s decedent died by suicide when he jumped from the George Washington Bridge (GWB), […]

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IN THIS FAMILY OFFENSE PROCEEDING, THE JUDGE SHOULD NOT HAVE PLACED TIME AND TESTIMONY RESTRICTIONS ON THE HEARING; ORDER REVERSED AND NEW HEARING ORDERED (FIRST DEPT).

The First Department, reversing Family Court and ordering a new hearing in this family offense proceeding, determined the judge should not have placed time and testimony restrictions on the hearing: Order of fact-finding and disposition … , which, after a hearing, determined that respondent husband committed the family offense of harassment in the second degree, […]

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