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Entries by Bruce Freeman

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BECAUSE THE STATE, NOT THE TOWN, OWNS THE LAND BENEATH THE LAKE, THE TOWN DID NOT HAVE JURISDICTION TO BRING CRIMINAL CHARGES BASED UPON THE CONSTRUCTION OF DOCKS; THE CRIMINAL MATTER WAS DISMISSED ON THAT GROUND AND PLAINTIFFS BROUGHT A MALICIOUS PROSECUTION ACTION; BECAUSE THE CRIMINAL MATTER WAS TERMINATED IN PLAINTIFFS’ FAVOR THE MALICIOUS PROSECUTION ACTION SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the underlying criminal matter brought against the plaintiffs (the Melchers) by the town had been terminated in favor of the plaintiffs. Therefore the plaintiffs’ malicious prosecution action against the town should not have been dismissed. The town brought criminal charges based upon plaintiffs’ construction of docks in a […]

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CONVEYANCES OF REAL PROPERTY SHOULD HAVE BEEN SET ASIDE AS FRAUDULENT PURSUANT TO THE DEBTOR-CREDITOR LAW; RELATED AFFIRMATIVE DEFENSES BASED UPON UNSUPPORTED CONCLUSIONS OF LAW SHOULD HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined conveyances of property should have been set aside as fraudulent and the related affirmative defenses based upon unsupported conclusions of law should have been dismissed: … [T]he plaintiff submitted … a copy of the deed and transfer documents regarding the properties at issue, which demonstrated that conveyances of […]

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PLAINTIFF RECEIVED THE FULL BENEFIT OF A LOAN AGREEMENT; THE DOCTRINE OF EQUITABLE ESTOPPEL PRECLUDED PLAINTIFF’S CLAIM THE LOAN AGREEMENT IS UNENFORCEABLE BECAUSE THE UNDERLYING RECORDED MORTGAGE DID NOT BEAR HIS SIGNATURE (SECOND DEPT).

The Second Department determined the defendants” motion to dismiss was properly granted. Plaintiff contended the underlying mortgage which was part of a loan agreement was void because it was not signed, rendering the loan agreement unenforceable. Plaintiff had however accepted the proceeds of the loan and therefore was precluded from contesting the agreement by the […]

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IN A TRAFFIC ACCIDENT INVOLVING A FIRE TRUCK DRIVEN BY A VOLUNTEER FIREFIGHTER, THE FIRE DISTRICT CAN BE HELD TO A NEGLIGENCE, AS OPPOSED TO A RECKLESS DISREGARD, STANDARD PURSUANT TO GENERAL MUNICIPAL LAW 205-B (SECOND DEPT). ​

The Second Department, over a dissent, determined the defendant volunteer fire district could be held liable for a traffic accident under a negligence, as opposed to reckless disregard, standard, pursuant General Municipal Law 205-b. The dissent argued the reckless disregard standard applies because General Municipal Law 205-b does not specify a particular standard of care: […]

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SUPREME COURT HAD JURISDICTION TO ISSUE A DECLARATORY JUDGMENT RE: WHETHER PLAINTIFF PHARMACY COULD SEEK PAYMENT OF PRESCRIPTIONS UNDER THE WORKERS’ COMPENSATION LAW, EVEN THOUGH THE WORKERS’ COMPENSATION BOARD (WCB) HAD JURISDICTION OVER THE ISSUES RAISED IN THE COMPLAINT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined Supreme Court had jurisdiction over a declaratory judgment action, even though the case involved whether plaintiff pharmacy was entitled to payment for prescriptions under the Workers’ Compensation Law, a matter within the jurisdiction of the Workers’ Compensation Board (WCB): No party accepted responsibility for the payment of the […]

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BECAUSE THE COURT WAS NOT AUTHORIZED TO PLACE PETITIONER IN CUSTODY, THE COURT COULD NOT ORDER PETITIONER TO BE REMANDED TO RIKER’S ISLAND FOR A CPL ARTICLE 730 EXAMINATION; THE HABEAS CORPUS PETITION SHOULD HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department determined Supreme Court was not authorized to remand the petitioner, Wei Li, to Riker’s Island for a CPL article 730 examination because defendant was charged with a misdemeanor and was not in custody. Therefore the habeas corpus petition should have been granted: … [T]he references in CPL 730.20(2) and (3) to the […]

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ALTHOUGH THE CHILD-SUPPORT CONTEMPT PROCEEDING WAS IN SUPREME COURT, NOT FAMILY COURT, PLAINTIFF HAD A RIGHT TO COUNSEL UNDER THE JUDICIARY LAW; PLAINTIFF’S COUNSEL WAS INEFFECTIVE BECAUSE NO MEDICAL EVIDENCE WAS PRESENTED TO SUPPORT PLAINTIFF’S TESTIMONY HE WAS UNABLE TO WORK (SECOND DEPT).

The Second Department, after noting plaintiff was entitled to counsel under Judiciary Law 35 (8) in this child-support contempt proceeding in Supreme Court, determined plaintiff’s counsel was ineffective. Plaintiff testified he could not meet his child-support obligations because of medical problems, but counsel did not present any medical evidence: The plaintiff was denied effective assistance […]

PLAINTIFF WAS PROPERLY AWARDED SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION STEMMING FROM A FALL FROM A SIDEWALK BRIDGE PLAINTIFF WAS DISMANTLING; ALTHOUGH PLAINTIFF WAS SUPPLIED WITH A HARNESS, THERE WAS NO PLACE TO ATTACH THE SAFETY LINE (FIRST DEPT).

The First Department determined plaintiff was properly awarded summary judgment on his Labor Law 240 (1) cause of action based on his fall from a sidewalk bridge he was dismantling. Although plaintiff had a harness, there was no place to attach the safety line: Plaintiff testified that he was wearing a harness but that the […]

PLAINTIFF WAS STANDING AT THE TOP OF A LADDER WHEN IT WOBBLED AND HE FELL; COMPARATIVE NEGLIGENCE IS NOT A DEFENSE TO A LABOR LAW 240 (1) ACTION; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on his Labor Law 240 (1) cause of action, Plaintiff was standing at the top of a ladder when it wobbled and he fell: Plaintiff established prima facie entitlement to summary judgment on the Labor Law § 240(1) claim through his testimony […]

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THE JURY WAS INSTRUCTED ON THE CRITERIA FOR CONSCIOUS PAIN AND SUFFERING IN THIS NURSING-HOME MALPRACTICE CASE, BUT THE JUDGE DID NOT FIRST DETERMINE PLAINTIFF HAD SOME LEVEL OF COGNITIVE AWARENESS; THE CONSCIOUS PAIN AND SUFFERING CRITERIA ARE THE SAME FOR MALPRACTICE AND FOR VIOLATION OF PUBLIC HEALTH LAW 2801-D; NEW DAMAGES TRIAL ORDERED (FIRST DEPT).

The First Department vacated the $2.5 million pain and suffering award in this nursing-home malpractice case because the jury was instructed on the elements of “conscious” pain and suffering, but the judge did not first determine plaintiff had some level of cognitive awareness. The suit alleged the nursing home’s failure to monitor plaintiff-resident’s blood sugar […]

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