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Entries by Bruce Freeman

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ALTHOUGH PLAINTIFF BANK IN THIS FORECLOSURE ACTION DID NOT HAVE A JUSTIFIABLE EXCUSE FOR FAILING TO COMPLY WITH THE 90-DAY DEMAND TO FILE A NOTE OF ISSUE PURSUANT TO CPLR 3216, THE COMPLAINT SHOULD NOT HAVE BEEN DISMISSED (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the complaint in this foreclosure action should not have been dismissed pursuant to CPLR 3216, even though plaintiff’s excuse for failure to comply with the 90-day demand to file a note of issue was not justifiable: Because there was no compliance with the 90-day demand, the party seeking […]

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THE REPEAL OF THE RELIGIOUS EXEMPTION TO THE PUBLIC HEALTH LAW REQUIRING VACCINATION AGAINST MEASLES IS CONSTITUTIONAL (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Pritzker, determined that the repeal of the religious exemption to the Pubic Health Law which allowed parents to refuse to vaccinate their children against measles was constitutional. The statute also allows a medical exemption, which was not repealed. The declaratoy-judgment complaint was dismissed for failure to […]

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RESPONDENT JUVENILE WAS DENIED HER RIGHT TO A SPEEDY TRIAL IN THIS JUVENILE DELINQUENCY PROCEEDING (THIRD DEPT).

The Third Department, reversing Family Court, determined respondent juvenile was denied her right to a speedy trial in this juvenile delinquency proceeding. The respondent initially waived her speedy trial rights to allow a diagnostic evaluation, which would take 90 days. Before the evaluation was complete, in response to allegations that respondent was acting aggressively in […]

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THE SCHOOL TOOK REASONABLE STEPS TO PREVENT A STUDENT, J. P., FROM ASSAULTING AN UNIDENTIFIED STUDENT AFTER THE SCHOOL LEARNED OF A RUMOR THAT J.P. INTENDED TO FIGHT SOMEONE; WHEN CONFRONTED AND WARNED J.P. DENIED THAT HE INTENDED TO ASSAULT ANYONE; TWO DAYS LATER J.P. ASSAULTED PLAINTIFF’S CHILD; THE SCHOOL’S MOTION FOR SUMMARY JUDGMENT DISMISSING THE NEGLIGENT SUPERVISION ACTION SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant school district’s motion for summary judgment in this negligent supervision case should have been granted. Plaintiff’s child was assaulted at school by another child, J.P. The assistant principal had been warned that J.P. was going to fight with someone. The assistant principal warned J.P. of the […]

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THE POLICE DID NOT DEMONSTRATE A LAWFUL BASIS FOR IMPOUNDING DEFENDANT’S VEHICLE AND CONDUCTING AN INVENTORY SEARCH; DEFENDANT’S MOTION TO SUPPRESS THE SEIZED EVIDENCE SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion to suppress evidence seized from his vehicle should have been granted. The police did not demonstrate a lawful bas for impounding the vehicle and conducting an inventory search: … [T]he People failed to establish the lawfulness of the impoundment of the defendant’s vehicle and subsequent inventory […]

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PETITIONER, A JOURNALIST, UNDER THE ELECTION LAW, DID NOT HAVE THE CAPACITY OR STANDING TO EXAMINE 353 BALLOTS CAST IN THE PRIMARY ELECTION FOR QUEENS COUNTY DISTRICT ATTORNEY, WHICH WAS WON BY ONLY 55 VOTES (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Wooten, determined petitioner, a journalist, was not entitled under the Election Law to examine 353 ballots cast in the primary election for Queens County District Attorney which was won by only 55 votes: Election Law § 16-112 … only empowers the court to direct the examination […]

PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) AND 241 (6) CAUSES OF ACTION; DEFENDANTS WERE ENTITLED TO SUMMARY JUDMENT ON THE LABOR LAW 200 CAUSE OF ACTION (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined plaintiff’s motions for summary judgment on his Labor Law 240(1) and 241(6) causes o action should have been granted. In addition defendants’ motion for summary judgment on the Labor Law 200 cause of action should have been granted, Plaintiff was standing on a scaffold with no railing […]

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PLAINTIFF SHOULD NOT HAVE BEEN ALLOWED TO AMEND THE BILL OF PARTICULARS AFTER DISCOVERY WAS CLOSED TO RAISE A NEW THEORY OF LIABILITY STEMMING FROM FACTS NOT PREVIOUSLY ALLEGED; DEFENDANT OUT-OF-POSSESSION LANDLORD DEMONSTRATED THE LEASE DID NOT REQUIRE THE LANDLORD TO MAINTAIN THE DOOR WHICH PLAINTIFF ALLEGED CLOSED ON HER HAND (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion to amend the bill of particulars after discovery was complete should not have been granted and defendant out-of-possession landlord’s motion for summary judgment should have been granted. Plaintiff alleged the door of a retail store closed on her hand as she was pushing a cart with […]

THE REACH OF LIABILITY UNDER LABOR LAW 241 (6) AND THE MEANING OF “OWNER” AS USED IN THAT STATUTE EXPLAINED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined defendant 2 Big Meadows’ motion for summary judgment on the Labor Law 241 (6) cause of action should not have been granted. The court explained the reach of liability under Labor Law 241 (6) and the meaning of the term “owner” as used in the statute: Liability […]

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THE COUNTY POLICE OFFICER’S STATEMENT TO PLAINTIFF’S DECEDENT TO THE EFFECT SHE HAD NO REASON TO FEEL UNSAFE DID NOT CREATE A SPECIAL RELATIONSHIP; THEREFORE THE COUNTY WAS NOT LIABLE FOR THE SHOOTING DEATH OF PLAINTIFF’S DECEDENT AT THE HANDS OF THE FATHER OF HER YOUNG CHILD (SECOND DEPT).

The Second Department determined the complaint failed to state a cause of action against the county stemming from the shooting death of plaintiff’s decedent at the hands of the father of her child (Jenkins). Plaintiff’s decedent had repeatedly requested of the county police that Jenkins be arrested and allegedly was told there was no reason […]

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