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Entries by Bruce Freeman

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PLAINTIFF’S EXPERT’S AFFIDAVIT DID NOT RAISE A QUESTION OF FACT IN THIS MEDICAL MALPRACTICE ACTION; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined the defendants’ motion for summary judgment in this medical malpractice action should have been granted. Plaintiff’s expert’s affidavit did not raise a question of fact: … [P]laintiff alleges that due to defendants’ negligence in diagnosing a skull fracture during an emergency room visit …, he sustained permanent and […]

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PLAINTIFF FELL FROM A SCAFFOLD AFTER TOUCHING A LIVE ELECTRIC WIRE; FAILURE TO TURN OFF THE ELECTRICITY MAY BE COMPARATIVE NEGLIGENCE WHICH DOES NOT DEFEAT A LABOR LAW 240 (1) CAUSE OF ACTION; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment on his Labor Law 240 (1 cause of action should have been granted. Plaintiff was standing on a scaffold installing an exit sign when he touched a live wire and fell. Failure to turn off the electricity was at most comparative negligence which does […]

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PLAINTIFF’S DECEDENT FELL FROM AN UNGUARDED TOP BUNK AT A TEMPORARY SHELTER AND WAS RENDERED A QUADRIPLEGIC; THE SHELTER’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED; THERE WAS EVIDENCE THE SHELTER HAD INSTALLED GUARDRAILS ON OTHER TOP BUNKS (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined the negligence cause of action against defendant temporary housing shelter (CAFLF) should not have been dismissed. Plaintiff’s decedent (Philips) was rendered a quadriplegic and later died after falling from an unguarded top bunk. The shelter’s maintenance director testified it was dangerous for anyone to sleep in an […]

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UNDER THE TERMS OF THE SURRENDER AGREEMENT THE TENANT OWED THE LANDLORD AN ADDITIONAL $175,000; UPON DEFENDANT’S DEFAULT, THE PLAINTIFF SUED FOR THE CONTRACTUAL LIQUIDATED DAMAGES OF OVER $1,000,000; THE JUDGMENT FOR $175,000 WAS UPHELD; THE LIQUIDATED DAMAGES OF OVER $1,000,000 VIOLATED THE PUBLIC POLICY AGAINST NON-STATUTORY PENALTIES AND FORFEITURES (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Rivera, over a three-judge dissent, determined the liquidated damages provision of the landlord-tenant surrender agreement violated the public policy against penalties or forfeitures for which there is no statutory penalty. Defendant-tenant, a grocery store chain, entered a surrender agreement with plaintiff-landlord which allowed defendant to […]

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CONVERSATIONS ABOUT AND PLANNING OF THE MURDER OF DEFENDANT’S WIFE AND MOTHER-IN-LAW DID NOT CONSTITUTE LEGALLY SUFFICIENT EVIDENCE OF ATTEMPTED MURDER (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Feinman, over a three-judge dissent, determined the evidence of attempted first and second degree murder was legally insufficient. Defendant’s conversations and planning with a feigned confederate did not constitute an “actual step” toward killing his wife and mother-in-law: … [T]he only conduct to be considered […]

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PLAINTIFFS SOUGHT TO FORECLOSE ON LOANS TO THE BORROWERS WHO THEN STARTED BANKRUPTCY PROCEEDINGS; PLAINTIFFS THEN SUED DEFENDANTS, WHO ARE NOT PARTIES TO THE FORECLOSURE/BANKRUPTCY ACTIONS, FOR TORTIOUS INTERFERENCE WITH THE LOAN AGREEMENTS; THE TORTIOUS INTERFERENCE WITH CONTRACT ACTIONS ARE NOT PREEMPTED BY FEDERAL BANKRUPTCY LAW (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Stein, over a three-judge dissent, determined the tortious interference with contract claims, against defendants who are not parties in the foreclosure/bankruptcy proceedings, were not preempted by federal law. Plaintiff sought to foreclose on a loan and the borrowers commenced bankruptcy proceedings. Plaintiff then sued defendants, […]

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BASED UPON THE LANGUAGE OF THE INSURANCE POLICIES AT ISSUE, THE EXCESS INSURER WAS NOT LIABLE FOR THE PREJUDGMENT INTEREST ON THE PERSONAL INJURY JUDGMENT AFTER THE PRIMARY POLICY WAS VOIDED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, over two dissenting opinions, interpreted the insurance policies at issue such that the excess insurer was not obligated to pay interest on the underlying personal injury judgment after the primary policy was voided: This appeal involves a dispute concerning an excess insurer’s obligation to […]

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IN THESE THREE CASES, CONFINING LEVEL THREE SEX OFFENDERS WHO ARE ELIGIBLE FOR RELEASE FROM PRISON UNTIL COMPLIANT HOUSING IS AVAILABLE WAS NOT A CONSTITUTIONAL VIOLATION (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Fahey, over two separate dissenting opinions, determined, in the three cases before the court, confining level three sex offenders who are eligible for release from prison until compliant housing is available was not a constitutional violation: In these appeals, we consider constitutional challenges to the […]

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SEX OFFENDERS SUBJECT TO POSTRELEASE SUPERVISION MAY BE HOUSED IN A RESIDENTIAL TREATMENT FACILITY BEYOND THE SIX-MONTH STATUTORY PERIOD BEFORE COMPLIANT HOUSING HAS BEEN FOUND (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Stein, over a three-judge dissent, determined that sex offenders under a period of postrelease supervision (PRS) maybe housed in a residential treatment facility (RTF) after the statutory six-month period has expired and before compliant housing has been found: This appeal presents us with a question […]

DOMESTIC RELATIONS LAW 111 GIVES A COURT THE DISCRETION TO DISPENSE WITH AN ADULT ADOPTEE’S CONSENT TO ADOPTION; HERE PETITIONERS WERE PROPERLY ALLOWED TO ADOPT MARION T., A 66-YEAR-OLD NON-VERBAL WOMAN WITH A SIGNIFICANT DEVELOPMENTAL DISABILITY (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, over a concurrence and an extensive dissent, determined that the lower court rulings that Domestic Relations Law 111 (1)(a) gives a court the discretion to dispense with the adoptee’s consent to an adoption. Here the petitioners sought to adopt Marion T, a non-verbal 66-year-old […]

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