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Entries by Bruce Freeman

A DISMISSAL OF A COMPLAINT FOR FAILURE TO PROSECUTE (CPLR 3215) IS NOT ON THE MERITS AND THEREFORE IS NOT “WITH PREJUDICE” (SECOND DEPT).

The Second Department noted that a dismissal of a complaint for failure to prosecute pursuant to CPLR 3215 (c) is not on the merits and therefore should not be “with prejudice:” … [T]he court should not have directed dismissal of the complaint with prejudice, as “a dismissal under CPLR 3215(c) is a dismissal for a […]

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PLAINTIFF ASSUMED THE RISK OF STEPPING IN A CRACK OR HOLE IN AN OUTDOOR ASPHALT BASKETBALL COURT (SECOND DEPT).

The Second Department determined plaintiff’s personal injury action against the city was properly dismissed under the doctrine of primary assumption of risk. Plaintiff was playing basketball on an asphalt court and stepped into a crack or hole on the court. The concurrence expressed displeasure with the result in this case but acknowledged the court was […]

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BY THE TERMS OF THE MANAGING AGENT’S CONTRACT WITH THE COOPERATIVE, THE MANAGING AGENT DID NOT FULLY ASSUME THE DUTY TO MAINTAIN THE COOPERATIVE PREMISES SUCH THAT THE AGENT WOULD BE LIABLE FOR PLAINTIFF’S SLIP AND FALL ON THE PREMISES; THE MANAGING AGENT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing Supreme Court in this slip and fall case, determined the defendant managing agent was not liable based on the terms of managing agent’s contract with the cooperative where plaintiff fell: Where … a managing agent is accused of nonfeasance which causes injury to a third party, it is subject to liability […]

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THE BANK’S EVIDENCE OF DEFENDANT’S DEFAULT AND COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 1304 AND THE MORTGAGE WAS INSUFFICIENT (SECOND DEPT).

The Second Department, reversing Supreme Court in this foreclosure action, determined plaintiff bank did not present sufficient evidence of defendant’s default or the bank’s compliance the the notice requirements of the mortgage and RPAPL 1304: … [Plaintiff’s representative] did not attest that he was personally familiar with the record-keeping practices and procedures of the plaintiff […]

THE INSTALLATION OF LARGE INDVIDUAL LETTERS FOR A SIGN ON THE FRONT SOFFIT OF A BUILDING CONSTITUTED “ALTERING” THE BUILDING TO WHICH LABOR LAW 240(1) AND 241(6) APPLY; BECAUSE THE DEFENDANT DID NOT DEMONSTRATE IT DID NOT HAVE ACTUAL NOTICE OF THE DANGEROUS CONDITION OF THE SOFFIT (WHICH COLLAPSED), THE LABOR LAW 200 CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined Labor Law 240 (1), 241 (6) and 200 causes of action should not have been dismissed. Plaintiff was hired to install a sign made up of large individual letters on the front soffit of a business. Plaintiff used a ladder to climb inside the soffit through an access […]

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THE WARRANTLESS SEARCHES OF CLOSED CONTAINERS WERE NOT JUSTIFIED BY THE ITEMS BEING IN DEFENDANT’S “GRABBABLE” AREA OR BY “EXIGENT CIRCUMSTANCES;” CONVICTION REVERSED (THIRD DEPT).

The Third Department, reversing defendant’s conviction, over a concurrence, determined the skimmer (a forgery device) was the product of an illegal warrantless search and should have been suppressed: “To justify a warrantless search of a closed container incident to arrest, the People must satisfy two requirements: The first imposes spatial and temporal limitations to ensure […]

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FAMILY COURT RELIED ON HEARSAY (WHAT MOTHER TOLD THE CASEWORKER) IN THIS NEGLECT PROCEEDING AGAINST FATHER, NEGLECT FINDINGS REVERSED (THIRD DEPT). ​

The Third Department, reversing Family Court, determined the court improperly relied upon hearsay to make neglect findings and the evidence was otherwise insufficient. Mother’s neglect petitions were disposed of after she admitted neglect. The instant proceeding concerned the neglect petitions against father (the respondent) to which mother was not a party. The caseworker testified about […]

PETITIONER WAITED EIGHT MONTHS WITHOUT RECEIVING A DECISION ON THE ADMINISTRATIVE APPEAL OF THE DENIAL OF HIS GRIEVANCE BEFORE FILING AN ARTICLE 78 CONTESTING THE DENIAL; PETITIONER WAS ENTITED TO THE “FUTILITY EXCEPTION” TO THE REQUIREMENT THAT HE EXHAUST ALL ADMINISTRATIVE REMEDIES BEFORE TURNING TO THE COURTS (THIRD DEPT).

The Third Department determined petitioner-inmate was entitled to the “futility exception” to the requirement that administrative remedies be exhausted before bringing an Article 78 proceeding to contest the administrative ruling. Petitioner brought a grievance alleging the Department of Corrections and Community Supervision (DOCCS) should not have reduced his pay for work in the mess hall […]

RESPONDENT DID NOT CONSTRUCTIVELY DENY PETITIONER’S FOIL REQUEST BY EXTENDING ITS SELF-IMPOSED DEADLINES FOR RESPONDING TO THE REQUEST (THIRD DEPT). ​

The Third Department, reversing Supreme Court, over a dissent, determined respondent NYS Department of Transportation did not constructively deny petitioner’s FOIL request by extending the time for a response. Therefore petitioner’s Article 78 proceeding was premature and was rendered moot by petitioner’s ultimate response to the request: Generally, an agency must respond to a written […]

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DEFENSE COUNSEL TOLD THE COURT DURING THE PRE-TRIAL SUPPRESSION HEARING THAT DEFENDANT WAS NOT CONTESTING HIS CONSENT TO THE INTOXILYZER BREATH TEST; SUPREME COURT PROPERLY DENIED DEFENDANT’S ATTEMPT TO RAISE THAT SAME SUPPRESSION ISSUE DURING TRIAL; THE DISSENT DISAGREED (FIRST DEPT).

The First Department, over a dissent, determined defendant’s attempt, during trial, to suppress the results of the Intoxilyzer breath test was properly denied. Defense counsel had told the court, during the pretrial suppression hearing. defendant did not wish to contest the validity of his consent to the breath test and, consequently,  the prosecutor did not […]

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