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Entries by Bruce Freeman

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THE COMPLAINT STATED CAUSES OF ACTION FOR CONSTRUCTIVE TRUST AND PROMISSORY ESTOPPEL; THE UNJUST ENRICHMENT ELEMENT OF THE CONSTRUCTIVE TRUST WAS NOT PRECLUDED BY A CONTRACT SIGNED BY PLAINTIFF AS A TRUSTEE (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, over a partial dissent, determined the complaint stated a cause of action for a constructive trust, the unjust enrichment element of the constructive trust was not precluded by a contract, and the alleged promise to take care of plaintiff in return for an interest in an LLC was […]

DEFENDANT DID NOT DEMONSTRATE WHEN THE AREA WHERE PLAINTIFF FELL WAS LAST CLEANED OR INSPECTED; THEREFORE DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant in this slip and fall case did not demonstrate it lacked constructive notice of the water on the floor as a matter of law. Defendant did not submit any proof demonstrating when the area was last cleaned or inspected: To constitute constructive notice, a defect must be […]

DEFENDANT’S ALLEGED FAILURE TO MAINTAIN ITS TRUCK LED TO AN ACCIDENT IN WHICH A VAN DRIVEN BY PLAINTIFF’S EMPLOYEE STRUCK DEFENDANT’S EMPLOYEE; A LAWSUIT BY DEFENDANT’S EMPLOYEE AGAINST PLAINTIFF CULMINATED IN A $900,000 SETTLEMENT; PLAINTIFF ALLEGED THE RESULTING INCREASED INSURANCE PREMIUMS FORCED PLAINTIFF OUT OF BUSINESS; THE LOSS OF PLAINTIFF’S BUSINESS WAS NOT A FORESEEABLE CONSEQUENCE OF DEFENDANT’S ALLEGED FAILURE TO MAINTAIN ITS TRUCK (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the defendant’s negligence was not a proximate cause of the damages suffered by plaintiff. Two wheels fell off defendant’s dump truck. Plaintiff’s (Able Medical’s) employee struck one of the wheels and then struck defendant’s employee, the truck driver. Defendant’s employee sued the plaintiff and the matter was settled […]

QUESTION OF FACT WHETHER AN UNGUARDED, UNILLUMINATED SEAWALL AT THE BACK OF DEFENDANTS’ YARD CONSTITUTED AN ACTIONABLE DANGEROUS CONDITION; PLAINTIFF, AT NIGHT, FELL OVER THE WALL DOWN TO THE BEACH BELOW (FOURTH DEPT).

The Fourth Department determined there was a question of fact whether the unguarded seawall in defendants’ backyard constituted a dangerous condition. Plaintiff was at defendants’ party and walked to the back of the yard to relieve himself when he fell over the wall, which was 20 feet above the lake: Defendants’ backyard is approximately 20 […]

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NON-OWNER DID NOT HAVE STANDING TO MOVE TO VACATE AN ERIE COUNTY TAX FORECLOSURE SALE; THE RIGHT TO PAY THE DELINQUENT TAXES HAD BEEN EXTINGUISHED (FOURTH DEPT).

The Fourth Department, reversing County Court, determined the tax foreclosure sale of property owned by Black Rock to appellant should not have been vacated.  Respondent, Fedder, moved to vacate the sale. After County Court granted Fedder’s motion, the delinquent taxes were paid, the County issued a certificate of redemption to Black Rock, which then sold […]

IN THIS LIEN LAW DISPUTE OVER PAYMENT PURSUANT TO CONSTRUCTION CONTRACTS, DEFENDANTS DID NOT DEMONSTRATE AS A MATTER OF LAW THAT THE RESTORATION OF IMPROPERLY DIVERTED TRUST ASSETS WITH NON-TRUST ASSETS LIMITED DEFENDANTS’ DAMAGES (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court in this Lien-Law construction-contract action, over a dissent, determined defendants did not demonstrate as a matter of law that the improper diversion of trust assets was cured by the restoration of trust assets with non-trust assets: “[T]he primary purpose of [Lien Law] article 3-A and its predecessors . […]

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THE JUDGE’S MAINTENANCE AWARD MAY NOT HAVE BEEN PROPERLY BASED UPON THE FACTORS ENUMERATED IN DOMESTIC RELATIONS LAW 236; MATTER REMITTED (FOURTH DEPT). ​

The Fourth Department, vacating the maintenance award and remitting for recalculation, determined Supreme Court did not set forth the factors for the maintenance calculation as required by Domestic Relations Law 236: Defendant husband appeals from a judgment of divorce that, inter alia, directed him to pay plaintiff wife $750 a week in maintenance for a […]

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THERE WAS PROBABLE CAUSE TO ARREST PLANTIFF FOR TRESPASS AFTER SHE WAS ASKED TO LEAVE THE RESTAURANT BY RESTAURANT STAFF; THEREFORE PLAINTIFF’S FALSE ARREST CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED (FOURTH DEPT).

The Fourth Department determined plaintiff’s cause of action for false arrest should have been dismissed in this excessive-force, civil-rights-violation action against two police officers. Plaintiff got into an argument with restaurant staff and was asked to leave by the staff, who then called the police. The police broke plaintiff’s arm when attempting to handcuff her. […]

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SUPREME COURT SHOULD NOT HAVE DENIED PETITIONER-SEX-OFFENDER’S REQUEST TO REPRESENT HIMSELF IN THE MENTAL HYGIENE LAW ARTICLE 10 CIVIL COMMITMENT PROCEEDING (FOURTH DEPT).

The Fourth Department, reversing the Mental Hygiene Law article 10 civil commitment of petitioner as a dangerous sex offender, determined Supreme Court should not have denied petitioner’s request to represent himself: We have recognized that a respondent in a Mental Hygiene Law article 10 proceeding “can effectively waive his or her statutory right to counsel” […]

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QUESTIONS OF FACT ABOUT WHETHER THE INSURER IS ESTOPPED FROM DENYING COVERAGE TO A PARTY LISTED AS AN ADDITIONAL INSURED IN A CERTIFICATE OF INSURANCE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined there were questions of fact about plaintiff’s reliance on a certificate of insurance and whether the certificate was issued by the carrier or its agent. Although a certificate of insurance is not a contract, the carrier may be estopped from denying coverage if the party named as an […]

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