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Entries by Bruce Freeman

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THE MAJORITY CONCLUDED PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT IN THIS FATAL VEHICLE-PEDESTRIAN ACCIDENT CASE BECAUSE DECEDENT’S ALLEGED CONTRIBUTORY NEGLIGENCE DOES NOT BAR SUMMARY JUDGMENT; THE DISSENT ARGUED THERE WAS A QUESTION OF FACT WHETHER DECEDENT’S NEGLIGENCE WAS THE SOLE PROXIMATE CAUSE OF THE ACCIDENT (FOURTH DEPT).

The Fourth Department, over a dissent, determined plaintiff was entitled to summary judgment in this fatal vehicle-pedestrian accident case. The majority held that any negligence on the part of plaintiff’s decedent constituted comparative negligence which is no longer a bar to summary judgment. The dissent argued there was a question of fact whether decedent’s actions […]

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SUPREME COURT HAD FOUND COVID-19 RESTRICTIONS ON LIVE MUSIC PERFORMANCE UNCONSTITUTIONAL; THE APPEAL WAS DEEMED MOOT AND THE MERITS WERE NOT REACHED (FOURTH DEPT).

The Fourth Department determined the New York State Liquor Authority’s (SLA’s) appeal of Supreme Court’s ruling that the SLA’s COVID-19 guidance imposed upon a tavern (Sportsmen’s) were unconstitutional was moot. Neither party had argued the appeal should be dismissed as moot: [SLA’s] guidance, which Sportsmen’s was required to abide by pursuant to certain executive orders, […]

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THE AMBIGUITY IN THE HOME INSURANCE POLICY WAS NOT CLEARED UP BY EXTRINSIC EVIDENCE AND MUST BE RESOLVED AGAINST THE INSURER; THE INSURER SHOULD NOT HAVE DISCLAIMED COVERAGE FOR WATER DAMAGE CAUSED BY FROZEN PIPES (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the insurer should not have disclaimed coverage for water damage caused by frozen pipes in plaintiffs’ seasonal home. The case turned on the whether the plaintiffs took “reasonable care” (within the meaning of the policy) to maintain the heat in the house: … [P]laintiffs established as follows: the […]

CLAIMANT, A POLICE OFFICER WHO WORKED AT A VEHICLE CHECKPOINT FOR TRAFFIC TO AND FROM GROUND ZERO AFTER THE WORLD TRADE CENTER WAS DESTROYED, PARTICIPATED IN THE CLEANUP WITHIN THE MEANING OF WORKERS’ COMPENSATION LAW SECTION 28; THEREFORE HIS CLAIM (BASED UPON TOXIN-RELATED INJURY) SHOULD NOT HAVE BEEN DISMISSED AS UNTIMELY (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined claimant police officer did participate in the cleanup operations at ground zero and his claim should not have been disallowed as untimely pursuant to Workers’ Compensation Law section 28. Claimant worked at a vehicle checkpoint for traffic to and from ground zero and alleged injury from […]

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PETITIONER, A POLICE OFFICER, WAS ASKED BY HER SUPERVISOR TO PICK UP A LARGE BREAKFAST ORDER FOR THE PRECINCT; PETITIONER SLIPPED AND FELL ON ICE IN THE PARKING LOT WHEN RETURNING WITH THE ORDER; PETITIONER WAS “IN SERVICE” WITHIN THE MEANING OF THE RETIREMENT AND SOCIAL SECURITY LAW WHEN SHE FELL (THIRD DEPT).

The Third Department determined the petitioner, a police officer, was in service when she slipped on ice and her application for accidental disability benefits should not have been denied on that ground. The matter was sent back for a determination when the fall was an “accident” within the meaning of the Retirement and Social Security […]

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THE DOCTOR ORDERED A CERTAIN DOSAGE OF MEDICATION BE ADMINISTERED FOR “1” MINUTE TO ADDRESS SYMPTOMS OF A STROKE, BUT A NURSE MISTAKENLY PROGRAMMED THE MACHINE TO ADMINISTER THE MEDICATION FOR “11” MINUTES; THE ACTION SOUNDS IN MEDICAL MALPRACTICE, NOT ORDINARY NEGLIGENCE (THIRD DEPT).

The Third Department determined Supreme Court properly ruled this case sounded in medical malpractice, not ordinary negligence, and explained the difference. Plaintiff had been given the wrong dosage of tPA upon arrival at the hospital to address symptoms of a stroke. Due to a mistake, the machine was programmed to administer a quantity of the […]

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ALTHOUGH PLAINTIFF SOUGHT DISSOLUTION OF THE PARTNERSHIP AND COULD NOT COMPEL PARTITION IF THE PARTNERSHIP EXISTS, PLAINTIFF SHOULD HAVE BEEN ALLOWED TO AMEND THE COMPLAINT TO ADD A CAUSE OF ACTION FOR PARTITION IN THE ALTERNATIVE (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determine plaintiff should have been allowed to amend the complaint to allege a cause of action for partition in this partnership dispute. Although plaintiff sought dissolution of the partnership, and could not compel partition if the partnership exists, partition would be available if the existence of the partnership […]

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DEFENDANT WAS ENTITLED TO A DOWNWARD DEPARTURE (LEVEL TWO TO ONE) IN THIS CHILD PORNOGRAPHY CASE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion for a downward departure in this child pornography case should have been granted: At a hearing pursuant to the Sex Offender Registration Act (Correction Law art 6-C) to determine the defendant’s risk level, defense counsel requested that, despite the defendant’s score on the risk assessment instrument, […]

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DEFENDANT DID NOT USE ANY PHYSICAL FORCE IN REFUSING TO COOPERATE AFTER A TRAFFIC STOP; OBSTRUCTION OF GOVERNMENTAL ADMINISTRATION CONVICTION REVERSED (SECOND DEPT).

The Second Department, reversing defendant’s conviction of obstructing governmental administration second degree, determined there was no evidence the defendant used physical force. Passive refusal to cooperate after a traffic stop is not enough: … [T]he defendant was argumentative throughout the traffic stop and arrest-booking process, repeatedly refused to answer the officers’ questions, and refused to […]

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THE COURT SHOULD HAVE HELD A FRYE HEARING ON THE ADMISSIBILITY OF DNA-RELATED EVIDENCE GENERATED BY THE FORENSIC STATISTICAL TOOL (FST); CONVICTION REVERSED (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined the court should have held a Frye hearing on the admissibility of DNA-related evidence generated by the Forensic Statistical Tool (FST): Prior to trial, the Supreme Court denied the defendant’s motion to preclude the People from introducing at trial DNA testing results and testimony concerning the Forensic Statistical […]

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