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Entries by Bruce Freeman

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THE JUVENILE DELINQUENCY ADJUDICATION WAS AFFIRMED; TWO DISSENTERS ARGUED THE PROOF THE JUVENILE KNOWINGLY, VOLUNTARILY AND INTELLIGENTLY WAIVED HIS MIRANDA RIGHTS WAS INSUFFICIENT (SECOND DEPT).

Although the Second Department affirmed the juvenile delinquency adjudication, two dissenters argued the presentment agency did not prove the juvenile was capable of knowingly, voluntarily and intelligently waiving his Miranda rights. The juvenile’s expert provided evidence of the juvenile’s limited intellectual functioning: From the dissent: The expert’s uncontradicted opinion was that the appellant had “fundamental […]

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THE RELEASE WAS VALID EVEN THOUGH PLAINTIFF DID NOT UNDERSTAND ENGLISH; CPLR 2101, WHICH REQUIRES DOCUMENTS IN A FOREIGN LANGUAGE WHICH ARE FILED OR SERVED BE ACCOMPANIED BY AN ENGLISH TRANSLATION, DOES NOT APPLY BECAUSE THE RELEASE WAS IN ENGLISH (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the release executed by plaintiff with respect to defendant M & I was valid, despite the fact that plaintiff did not understand English: A person who does not understand the English language is not automatically excused from complying with the terms of a signed agreement, since such person […]

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AN INSPECTION OF THE BLACKTOP FIVE TO SEVEN WEEKS BEFORE PLAINTIFF ALLEGEDLY STEPPED IN A HOLE AND FELL DID NOT DEMONSTRATE DEFENDANT DID NOT HAVE CONSTRUCTIVE NOTICE OF THE CONDITION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant in this slip and fall case did not demonstrate it did not have constructive notice of the hole in the blacktop where plaintiff allegedly fell: “To meet its initial burden on the issue of lack of constructive notice, [a] defendant must offer some evidence as to when […]

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IN A SIDEWALK SLIP AND FALL CASE, WHERE THE VILLAGE CODE REQUIRES WRITTEN NOTICE OF THE DEFECT BE GIVEN TO THE VILLAGE CLERK AS A CONDITION PRECEDENT TO LIABILITY, PROOF THAT WRITTEN NOTICE WAS GIVEN TO SOME OTHER VILLAGE OFFICER OR ENTITY WILL NOT DEFEAT THE VILLAGE’S MOTION FOR SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the village’s motion for summary judgment in this sidewalk slip and fall case should have been granted. The village code provided the village would not be liable unless written notice of the condition had been given to the village clerk. Here the notice was apparently given to another […]

SUPREME COURT SHOULD NOT HAVE CONSIDERED DEFENDANT’S ARGUMENT RAISED FOR THE FIRST TIME IN REPLY PAPERS; DEFENDANT ORIGINALLY MOVED FOR SUMMARY JUDGMENT AND THEN ARGUED IN REPLY PAPERS IT HAD INTENDED TO MAKE A MOTION TO DISMISS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant P & C Merrick’s motion to dismiss the complaint, asserted for the first time in reply papers, should not have been considered by the court. P & C Merrick had initially moved for summary judgment: The Supreme Court erred in considering P & C Merrick’s contention, […]

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DEFENDANT DID NOT DEMONSTRATE PLAINTIFF IN THIS TRAFFIC ACCIDENT CASE WAS A SPECIAL EMPLOYEE OR A CO-EMPLOYEE OF DEFENDANT AT THE TIME OF THE ACCIDENT; THEREFORE DEFENDANT’S WORKERS’ COMPENSATION AFFIRMATIVE DEFENSE SHOULD HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s “Workers’-Compensation-exclusive-recovery” defense should have been dismissed. Plaintiff was involved in a traffic accident driving defendant’s van, which plaintiff alleged was not properly maintained. Defendant unsuccessfully argued plaintiff was a special employee or a co-employee of defendant and therefore plaintiff’s only remedy was Workers’ Compensation: “Generally, workers’ compensation […]

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PLAINTIFF ALLEGED STORM WATER RUNOFF FROM DEFENDANT’S PROPERTY FLOODED PLAINTIFF’S PROPERTY; THE NEGLIGENCE CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED AS DUPLICATIVE OF THE NUISANCE CAUSE OF ACTION BECAUSE NUISANCE MAY INVOLVE INTENTIONAL CONDUCT (THIRD DEPT).

The Third Department, in a decision too detailed to fairly summarize here, determined Supreme Court properly denied summary judgment in this dispute about responsibility for storm water runoff which allegedly flooded plaintiff’s property. Supreme Court, however, erred in dismissing plaintiff’s negligence cause of action as duplicative of the nuisance cause of action: The effect of […]

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FATHER ACKNOWLEDGED IMPREGNATING THE OLDEST CHILD; SUMMARY JUDGMENT ON THE ABUSE AND NEGLECT ALLEGATIONS AGAINST FATHER WAS PROPER; HOWEVER THERE WERE QUESTIONS OF FACT ABOUT WHEN MOTHER LEARNED OF THE PREGNANCY AND WHETHER SHE KNEW WHO THE FATHER WAS; SUMMARY JUDGMENT ON THE ABUSE AND NEGLECT ALLEGATIONS AGAINST MOTHER SHOULD NOT HAVE BEEN GRANTED (THIRD DEPT).

The Third Department, reversing (modifying) Family Court, determined summary judgment on the abuse and neglect allegations against father was properly granted, but summary judgment on the abuse and neglect allegations against mother should not have been granted. Father acknowledged he impregnated the oldest child (who was eleven at the time of the birth). But there […]

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SUPREME COURT SHOULD NOT HAVE DISMISSED THE COMPLAINT IN THIS SLIP AND FALL CASE ON THE GROUND THE DEFENDANT’S MOTION FOR SUMMARY JUDGMENT WAS UNOPPOSED; PLAINTIFF’S COUNSEL WAS UNDER THE IMPRESSION THE PARTIES STIPULATED TO AN ADJOURNED DATE; LEAVE TO APPEAL GRANTED IN THE INTERST OF JUSTICE; SUMMARY JUDGMENT DENIED ON THE MERITS (FIRST DEPT).

The First Department, reversing Supreme Court, determined the building owner’s (Findlay’s) motion for summary judgment in this wet-floor slip and fall case should not have been granted. Supreme Court had treated the motion as unopposed. However, plaintiff’s counsel was under the impression the parties had stipulated to an adjourned date. Leave to appeal was granted […]

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THE NYC COMPTROLLER’S SUBPOENAS FOR COVID-19-PLANNING-RELATED COMMUNICATIONS BETWEEN MAYOR DE BLASIO AND THE FIRST DEPUTY MAYOR WERE PROPERLY QUASHED BY SUPREME COURT (FIRST DEPT).

The First Department determined Supreme Court properly quashed subpoenas issued by the NYC Comptroller seeking communications between Mayor de Blasio and First Deputy Mayor Fuleihan concerning the city’s COVID-19 pandemic planning. The First Department further held Supreme Court properly refused to quash other subpoenas issue by the Comptroller and properly ordered the depositions of two […]

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