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Entries by Bruce Freeman

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DEFENDANT TORTIOUSLY INTERFERED WITH PLAINTIFF’S CONTRACT BUT DID NOT TORTIOUSLY INTERFERE WITH PLAINTIFF’S BUSINESS RELATIONS OR ENGAGE IN UNFAIR COMPETITION; THE ELEMENTS OF THE THREE CAUSES OF ACTION EXPLAINED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined defendant was properly found to have tortiously interfered with plaintiff’s contract but should not have been found to have tortiously interfered with plaintiff’s business relations or to have engaged in unfair competition. The elements of each cause of action are clearly explained in the decision. With respect […]

PLAINTIFF’S FALL FROM A LADDER OCCURRED DURING ROUTINE MAINTENANCE AND THEREFORE WAS NOT ACTIONABLE PURSUANT TO LABOR LAW 240 (1) (SECOND DEPT).

The Second Department determined plaintiff’s Labor Law 240 (1) cause of action was properly dismissed because plaintiff was engaged in routine maintenance at the time of his fall from a ladder: “Generally, courts have held that work constitutes routine maintenance where the work involves ‘replacing components that require replacement in the course of normal wear […]

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IN THIS RESENTENCING PROCEEDING, THE JUDGE SHOULD HAVE CONSIDERED DEFENDANT’S CONDUCT SINCE THE ORIGINAL SENTENCE WAS IMPOSED IN 1998-99 AND SHOULD HAVE ORDERED AN UPDATED PRESENTENCE REPORT WHICH INCLUDED AN INTERVIEW WITH DEFENDANT (SECOND DEPT).

The Second Department, reversing Supreme Court in this resentencing proceeding, determined the sentencing judge could consider defendant’s conduct after the original sentence was imposed and should have ordered an updated presentence report, including an interview with the defendant. Defendant had been sentenced in 1998 and 1999 to 125 years of imprisonment. In 2019 defendant moved […]

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ALTHOUGH NO OBJECTIONS WERE MADE TO THE PROSECUTOR’S NUMEROUS INAPPROPRIATE REMARKS, THE APPEAL WAS CONSIDERED IN THE INTEREST OF JUSTICE AND A NEW TRIAL WAS ORDERED (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined prosecutorial misconduct deprived defendant of a fair trial. The errors were not preserved by objections, but the appeal was considered in the interest of justice. The prosecutor’s remarks are detailed in the decision and are too numerous to include here: The prosecutor denigrated any possible defense, invoked the […]

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BECAUSE A LIBERTY INTEREST IS AT STAKE, RESPONDENT SHOULD HAVE BEEN AFFORDED AN OPPORTUNITY TO BE HEARD IN OPPOSITION TO THE REVOCATION OF THE SUSPENSION OF THE ORDER OF COMMITMENT (SECOND DEPT).

The Second Department, reversing Family Court, reversing the revocation of the suspension of the order of commitment, determined respondent was entitled to an opportunity to be heard because a liberty interest is at stake: “The court may suspend an order of commitment upon reasonable conditions and is also authorized to revoke such suspension at any […]

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THE CLIMATOLOGICAL RECORDS WERE NOT CERTIFIED AS BUSINESS RECORDS AND THEREFORE COULD NOT BE RELIED UPON TO SHOW A STORM IN PROGRESS AT THE TIME OF THE SLIP AND FALL; PROOF OF A GENERAL INSPECTION ROUTINE COULD NOT BE RELIED UPON TO SHOW THE ABSENCE OF CONSTRUCTIVE NOTICE OF THE BLACK ICE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion for summary judgment in this black-ice slip and fall case should not have been granted. The climatological records submitted to demonstrate there was a storm in progress at the time of the fall were not certified as business records and were otherwise insufficient. The evidence of […]

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THE SEPARATION AGREEMENT PROVIDED THAT THE PARTIES “SHALL” CONSULT EACH OTHER ON HEALTH DECISIONS FOR THE CHILD BUT FATHER HAD THE CHILD INOCULATED WITHOUT CONSULTING MOTHER; BECAUSE THE PARTIES AGREED THE CHILD WOULD ATTEND PUBLIC SCHOOL, AND INOCULATION IS REQUIRED BY THE PUBLIC HEALTH LAW, MOTHER DID NOT DEMONSTRATE SHE WAS PREJUDICED BY THE BREACH OF THE SEPARATION AGREEMENT; THEREFORE MOTHER’S MOTION TO HOLD HUSBAND IN CONTEMPT WAS PROPERLY DENIED (SECOND DEPT).

The Second Department determined Supreme Court properly denied defendant-mother’s motion to hold plaintiff-father in contempt for having the child inoculated for common childhood diseases. The separation agreement required that the parties consult each other on health decisions for the child. Father did not consult with mother before having the child inoculated. The separation agreement did […]

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THE NYC BOARD OF STANDARDS AND APPEALS (BSA) PROPERLY APPROVED THE CONSTRUCTION OF A BUILDING IN THE SPECIAL LINCOLN SQUARE DISTRICT ON A SPLIT-LOT, I.E., A LOT THAT STRADDLES TWO ZONING DISTRICTS, EACH WITH ITS OWN LIMITATIONS ON USE (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Oing, reversing Supreme Count, determined the NYC Board of Standards and Appeals (BSA) properly approved the construction of a building in the Special Lincoln Square District. The project is on a zoning lot that straddles to zoning districts, each with its own limitations on uses, a […]

CLAIMANT, AN AGENT LICENSED TO SELL LIFE INSURANCE, ANNUITIES AND OTHER INVESTMENT PRODUCTS, WAS NOT AN EMPLOYEE OF THE BROKER-DEALER AND THEREFORE WAS NOT ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT). ​

The Third Department determined claimant agent was not an employee of broker-dealer AXA and therefore was not entitled to Unemployment Insurance benefits: AXA Advisors LLC is a broker-dealer registered to sell life insurance policies and annuities, stocks, mutual funds and other investment products. Claimant began working for AXA under a three-year “training allowance” agreement in […]

THE UNAVAILABILIITY OF PARKING FOR WORK REQUIRED THAT CLAIMANT CROSS A DANGEROUS ROAD TO GET TO HIS WORKPLACE; THE INJURIES SUFFERED WHEN CLAIMANT WAS STRUCK BY A VEHICLE WERE THEREFORE COMPENSABLE (THIRD DEPT).

The Third Department determined the unavailability of parking for work created a special hazard. Therefore claimant’s being struck by a vehicle while walking to his place of employment resulted in a compensable injury: … [C]laimant, a food service worker at Montefiore-Nyack Hospital, sustained serious injuries when he was struck by a motor vehicle while walking […]

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