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Entries by Bruce Freeman

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PLAINTIFF’S EXPERTS’ AFFIDAVITS WERE CONCLUSORY AND SPECULATIVE WITH RESPECT TO ONE DEFENDANT IN THIS MEDICAL MALPRACTICE ACTION; AND ANOTHER DEFENDANT’S EXPERTS WERE QUALIFIED TO OFFER OPINIONS IN AREAS OUTSIDE THEIR PARTICULAR FIELDS OF SPECIALIZATION (FOURTH DEPT).

The Fourth Department, reversing Supreme Court in this medical malpractice action, determined plaintiff’s experts’ affidavits were conclusory and speculative with respect to defendant Neurological Associates and defendant Radiology Associates’ experts were qualified to offer their opinions. The complaint alleged plaintiff’s decedent’s brain tumor was not timely detected and treated: … [P]laintiff’s experts “failed to provide […]

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THE ROBBERY CONVICTION WAS AGAINST THE WEIGHT OF THE EVIDENCE; THE STOP AND FRISK OF DEFENDANT WAS NOT JUSTIFIED; THE SHOWUP IDENTIFICATION SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction after trial and dismissing the indictment, in a full-fledged opinion by Justice Troutman, over a concurring opinion, determined the robbery conviction was against the weight of the evidence and the showup identification should have been suppressed. The opinion is comprehensive, well worth study, and cannot be fairly summarized here: … […]

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THE OFFICER WHO STOPPED THE CAR IN WHICH DEFENDANT WAS A PASSENGER AFTER HEARING GUN SHOTS DID NOT HAVE THE REASONABLE SUSPICION NEEDED FOR THE SEIZURE OF A VEHICLE; THE SEIZED EVIDENCE SHOULD HAVE BEEN SUPPRESSED; INDICTMENT DISMISSED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court and dismissing the indictment, determined the police did not have reasonable suspicion justifying the stop of the car in which defendant was a passenger. The seized evidence should have been suppressed. The officer who stopped the car had heard gunshots, drove in the direction of the shots, passed two intersecting streets, and […]

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50% FAULT SHOULD NOT HAVE BEEN APPORTIONED TO PLAINTIFF IN THIS WET-FLOOR SLIP AND FALL CASE; THE WATER ON THE FLOOR WAS NOT OPEN AND OBVIOUS AND THE WARNING SIGN WAS NOT VISIBLE (FOURTH DEPT).

The Fourth Department, modifying the Court of Claims, determined there was no basis for apportioning 50% liability to the plaintiff in this wet-floor slip and fail case. The water on the floor was not open and obvious and the warning sign was not visible. Therefore plaintiff was not at fault for walking briskly, looking forward […]

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DOCUMENTARY EVIDENCE SUBMITTED BY DEFENDANT SUBCONTRACTOR DEMONSTRATED IT DID NOT HAVE THE AUTHORITY TO SUPERVISE OR CONTROL THE WORK THAT CAUSED PLAINTIFF’S INJURY; THEREFORE THE LABOR LAW 240 (1) AND 200 CAUSES OF ACTION WERE PROPERLY DISMISSED AND THE COMMON LAW NEGLIGENCE CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED (FOURTH DEPT).

The Fourth Department, modifying Supreme Court, determined the documentary evidence submitted by defendant subcontractor in this Labor Law 241(6), 200 and common law negligence action conclusively established defendant did not have the authority to supervise of control the work which caused plaintiff’s injury. Defendant’s motion to dismiss pursuant to CPLR 3211 was properly granted re […]

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THE FINDING THAT DEFENDANT USED THE CONCRETE SIDEWALK AS A DANGEROUS INSTRUMENT WAS NOT SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE; DEFENDANT PUNCHED THE VICTIM WHEN THE VICTIM WAS STANDING, THE VICTIM FELL TO THE SIDEWALK, AND DEFENDANT CONTINUED TO PUNCH THE VICTIM, CAUSING THE VICTIM’S DEATH (FOURTH DEPT).

The Fourth Department, reversing the reckless assault conviction, determined the allegation the defendant used the concrete sidewalk as a dangerous instrument was not supported by legally sufficient evidence: Defendant appeals from a judgment convicting him, after a nonjury trial, of two counts of assault in the second degree (Penal Law § 120.05 [1] [intentional assault], […]

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ALTHOUGH CONSEQUENTIAL DAMAGES (MORTGAGE PAYMENTS, TAXES, INSURANCE, ETC.) ARE NOT USUALLY AVAILABLE WHEN A BUYER BREACHES A REAL ESTATE PURCHASE AGREEMENT BECAUSE THE SELLER REMAINS IN THE HOUSE AND THOSE COSTS ARE NOT CAUSED BY THE BREACH, THE SAME IS NOT TRUE FOR A COMMERCIAL SELLER WHO DOES NOT RESIDE IN THE HOUSE AND MUST MAKE SIMILAR PAYMENTS (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined consequential damages were available to the commercial developer in this breach of a real estate purchase agreement case. Usually when a buyer breaches a purchase agreement consequential damages are not available because the seller remains in the house and the mortgage and other costs of living there have […]

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THE DISTINCTION BETWEEN DETERMINING THE VALIDITY OF AN AGREEMENT TO ARBITRATE, THE COURT’S ROLE, AND THE INTERPRETATION OF A PROVISION IN THE AGREEMENT, THE ARBITRATOR’S ROLE, EXPLAINED; THE MOTION TO COMPEL ARBITRATION SHOULD HAVE BEEN GRANTED (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court, determined the motion to compel arbitration should have been granted. Among several substantive issues (not summarized here) the court explained the difference between determining the validity of the arbitration agreement, the court’s role, and interpreting a provision in the agreement, the arbitrator’s role: The only challenge … that plaintiff […]

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THE COUNTY DEMONSTRATED THERE WAS NO SPECIAL RELATIONSHIP WITH PLAINTIFF’S DECEDENT, THE DEFENDANTS’ ACTIONS WERE DISCRETIONARY AND THEREFORE PROTECTED BY GOVERNMENTAL FUNCTION IMMUNITY, AND THERE IS NO CAUSE OF ACTION IN NEW YORK FOR NEGLIGENT INVESTIGATION; PLAINTIFF’S WRONGFUL DEATH ACTION BASED UPON THE DEFENDANTS’ ALLEGED FAILURE TO PROTECT PLAINTIFF’S DECEDENT FROM ABUSE BY FAMILY MEMBERS DISMISSED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the county’s and the sheriff’s motions for summary judgment in this wrongful death case should have been granted. Plaintiff alleged the defendants were aware that plaintiff’s decedent was being abused by her half brother and mother and did not act to protect her. The Fourth Department held: (1) there […]

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THE POLICE CAR FOLLOWED DEFENDANT, FIVE FEET BEHIND HIM, AS HE WALKED THROUGH A NARROW PASSAGEWAY; THE POLICE WERE NOT IN PURSUIT AND THE HANDGUN DISCARDED BY THE DEFENDANT WAS PROPERLY SEIZED (FOURTH DEPT).

The Fourth Department determined the police, who followed defendant in a police car as he walked through a narrow passageway (a cut-through) between two streets, were not in pursuit of defendant. Therefore the weapon discarded by the defendant was properly seized: The evidence at the suppression hearing established that a police officer responding to the […]

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