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Entries by Bruce Freeman

PLAINTIFF, AN EXPERIENCED SKATER, FELL WHEN HIS SKATE HIT A RUT AS HE WAS COACHING HOCKEY; DESPITE THE APPLICABILITY OF THE ASSUMPTION OF RISK DOCTRINE, PLAINTIFF RAISED A QUESTION OF FACT ABOUT “INHERENT COMPULSION;” HE ALLEGED HE WAS DIRECTED TO CONTINUE THE PRACTICE AFTER COMPLAINING OF THE ROUGH ICE (FIRST DEPT).

The First Department, reversing Supreme Court, determined that evidence of “Inherent compulsion” raised a question of fact, despite the applicability of the assumption of risk doctrine. Plaintiff is an experienced skater who fell while coaching hockey when his skate hit a rut in the ice: Plaintiff does not dispute that defendants made a prima facie […]

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THERE WAS A QUESTION OF FACT WHETHER THE FORKLIFT ACCIDENT RESULTED FROM A HOLE OR CRACK IN THE SIDEWALK ADJACENT TO THE OUT-OF-POSSESSION LANDLORD’S BUILDING; EVEN OUT-OF-POSSESSION LANDLORDS ARE RESPONSIBLE FOR MAINTAINING THE ADJACENT SIDEWALK IN A REASONABLY SAFE CONDITION (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant out-of-possession landlord’s motion for summary judgment in this forklift accident case should not have been granted. There was a question of fact whether the forklift struck a hole or a crack in the sidewalk. Under the NYC Administrative Code, an out-of-possession landlord is responsible for maintaining the […]

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ALTHOUGH THE ELECTRIC BICYCLE WAS SOLD BY A THIRD-PARTY THROUGH AMAZON AND WAS ASSEMBLED BY AN APPROVED AMAZON PROVIDER, THERE IS NO THEORY UNDER WHICH AMAZON CAN BE HELD LIABLE FOR AN INJURY CAUSED BY IMPROPER ASSEMBLY OF THE BICYCLE (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Shulman, determined Amazon could not be held liable for an injury caused by an electric bicycle purchased through Amazon which apparently was not assembled properly. Eshion, a China-based company, listed the bicycle on Amazon. The purchaser, plaintiff’s father, elected to have the bicycle assembled. Codefendant Tri-State […]

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THE CREDIT BID IN THIS UCC FORECLOSURE WAS SIGNIFICANTLY BELOW WHAT A COMMERCIALLY REASONABLE BID SHOULD HAVE BEEN PURSUANT TO UCC 9-615 (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Lynch which addresses several issues not summarized here, determined the bid in foreclosure proceedings pursuant to UCC 9-611 was too low: Taking the position that the business cessation constituted a breach of the security agreement, [plaintiff] terminated the agreement and gave [defendants] notice of its intent […]

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THE VERDICT FINDING DEFENDANT CONSTRUCTIVELY POSSESSED DRUGS FOUND IN HIS SISTER’S APARTMENT WAS AGAINST THE WEIGHT OF THE EVIDENCE (THIRD DEPT). ​

The Third Department, reversing defendant’s drug-possession conviction, determined the jury’s conclusion defendant constructively possessed the drugs was against the weight of the evidence: … [V]iewing the evidence in a neutral light and weighing the relative probative force of the proof, the jury’s determination that defendant constructively possessed the crack cocaine was not supported by the […]

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THE PLANNING BOARD DID NOT HAVE THE AUTHORITY TO WAIVE OR IGNORE THE REQUIREMENTS OF THE VILLAGE ZONING CODE; THE SPECIAL USE PERMIT SHOULD NOT HAVE BEEN ISSUED AND THE SITE PLAN SHOULD NOT HAVE BEEN APPROVED (SECOND DEPT). ​

The Second Department determined the planning board abused its discretion in issuing a special permit and approving a site plan for a plant nursery and arborist business. To issue the special permit, the planning board improperly waived a requirement that the business have frontage and access to two major roads. The approve the site plan, […]

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ALTHOUGH THE COURT HAS THE DISCRETION TO ALLOW AMENDMENT OF A NOTICE OF CLAIM BASED UPON EVIDENCE GIVEN AT THE 50-H HEARING, THE AMENDMENT CANNOT SUBSTANTIALLY CHANGE THE FACTS AND ADD A NEW THEORY OF LIABILITY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the petitioner’s motion to amend the notice of claim in this medical malpractice action against the New York City Health and Hospitals Corporation should not have been granted. Although the court has the power to allow amendment of a notice of claim based upon evidence given at the […]

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THE PEOPLE DID NOT DEMONSTRATE THE MIRANDA WARNINGS WERE READ TO DEFENDANT BEFORE HE WAS QUESTIONED; GUILTY PLEA VACATED; THERE WAS NO PROOF DEFENDANT WOULD HAVE PLED GUILTY IF SUPPRESSION HAD BEEN GRANTED, THEREFORE THE HARMLESS ERROR ANALYSIS WAS NOT APPLICABLE (THIRD DEPT).

The Third Department, reversing County Court and vacating defendant’s guilty plea, determined defendant’s statement should have been suppressed: … [T]he People rely on the investigator having talked to the trooper and, apparently, an inference that the trooper told the investigator that he read defendant his rights. However, the trooper did not testify to having read […]

THE BIOLOGICAL FATHER’S CONSENT TO THE ADOPTION OF HIS CHILD WAS NOT REQUIRED BECAUSE HE FAILED TO SUPPORT THE CHILD DESPITE THE MEANS TO DO SO (SECOND DEPT). ​

The Second Department determined father’s consent to the adoption of his child is not required where the father has not maintained contact with the child: “A biological father’s consent to adopt a child over six months old who was born out of wedlock is required only if the father ‘maintained substantial and continuous or repeated […]

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PLAINTIFF’S MOTION TO SET ASIDE THE DEFENSE VERDICT IN THIS SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court’s denial of plaintiff’s motion to set aside the defense verdict and ordering a new trial in this slip and fall case, determined the defense verdict was against the weight of the evidence: “A jury verdict should not be set aside as contrary to the weight of the evidence unless […]

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