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Entries by Bruce Freeman

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CLAIMANT’S FAILURE TO SUBMIT MEDICAL RECORDS TO THE EMPLOYER PRIOR TO THE HEARING REQUIRED PRECLUSION OF THE RECORDS; HOWEVER THE CASE SHOULD NOT HAVE BEEN CLOSED; CLAIMANT MAY REMEDY THE OMISSION (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined the case should not have been closed because claimant failed to provide a copy of the medical records to the employer before the hearing, but rather the case should have been marked “no further action” which allows claimant to submit the medical records: Pursuant to 12 NYCRR […]

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THE BUILDING MANAGING AGENT, WHO HIRED PEREZ, THE BUILDING SUPERINTENDENT, WAS NOT OBLIGATED TO DETERMINE WHETHER PEREZ, A REGISTERED SEX OFFENDER, HAD A CRIMINAL RECORD; THE BUILDING OWNER AND MANAGING AGENT, THEREFORE, WERE NOT LIABLE UNDER A NEGLIGENT HIRING AND RETENTION THEORY OR A RESPONDEAT SUPERIOR THEORY FOR PEREZ’S SEXUAL ASSAULT ON INFANT PLAINTIFF (FIRST DEPT).

The First Department, reversing Supreme Court, determined the building owner, Carpenter, and managing agent, Lemle, could not be held liable for the sexual assault on infant plaintiff by Perez, the building superintendent. The managing agent, who hired Perez, was not under an obligation to determine whether Perez, a registered sex offender, had a criminal record: Carpenter hired […]

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THE MOTION TO VACATE DEFENDANT’S CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS SHOULD NOT HAVE BEEN DENIED WITHOUT HOLDING A HEARING; THE RECORD WAS NOT SUFFICIENT FOR DIRECT APPEAL AND THE MOTION PAPERS RAISED QUESTIONS REQUIRING A HEARING (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant’s motion to vacate his conviction on ineffective assistance grounds should not have been denied without holding a hearing. The record was not sufficient for a direct appeal on the issue, and the motion raised ineffective assistance questions requiring a hearing: Defendant’s motion, alleging ineffective assistance of counsel […]

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QUESTIONS OF FACT WHETHER THE CONTINUOUS TREATMENT DOCTRINE RENDERED THE MEDICAL MALPRACTICE ACTION TIMELY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined there were questions of fact about whether the continuous treatment applied such that the action was not barred by the statute of limitations: … [T]he plaintiffs raised a question of fact as to whether [defendant’s] postoperative treatment of the patient, including rehabilitative therapy, wound care, and pain management, […]

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PLAINTIFF ENTITLED TO AN EQUITABLE LIEN ON REAL PROPERTY WHICH WAS IDENTIFIED BUT NOT DESCRIBED IN THE MORTGAGE WHICH HAD BEEN ASSIGNED TO PLAINTIFF (SECOND DEPT).

The Second Department determined plaintiff bank was entitled to an equitable lien on real property. The mortgage secured by the property had been assigned to plaintiff but the mortgage did not include a description of the property: … [T]he plaintiff commenced the instant action seeking, inter alia, an equitable mortgage on the property. The complaint […]

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TEN POINTS SHOULD NOT HAVE BEEN ASSESSED FOR AN OLD MINOR OFFENSE IN PRISON, DEFENDANT’S RISK ASSESSMENT REDUCED TO LEVEL ONE (SECOND DEPT).

The Second Department, reducing defendant’s risk level to level one, determined the 10 point assessment for unsatisfactory conduct in prison was not justified: However, the record does not contain clear and convincing evidence to support the assessment of 10 points under risk factor 13, for “unsatisfactory” conduct while confined, based upon his conviction of the […]

DEFENDANT SHOULD NOT HAVE BEEN SENTENCED AS A PERSISTENT VIOLENT FELONY OFFENDER BECAUSE HE COMMITTED HIS SECOND OFFENSE BEFORE HE WAS SENTENCED FOR HIS FIRST OFFENSE (SECOND DEPT).

The Second Department determined defendant should not have been sentenced as a persistent violent felony offender: … [T]he defendant was improperly adjudicated a persistent violent felony offender, as he committed his second violent felony offense prior to the time when he was sentenced for his first felony conviction (Penal Law § § 70.08[1], 70.04[1][b][ii]; CPL […]

THE 90-DAY NOTICE WAS DEFECTIVE; THEREFORE THE ACTION SHOULD NOT HAVE BEEN DISMISSED PURSUANT TO CPLR 3216 (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the action should not have dismissed pursuant to CPLR 3216 because the 90-day notice was defective: On November 20, 2012, the Supreme Court issued a certification order which, inter alia, certified the matter for trial and directed the plaintiff to file a note of issue within 90 days. […]

A SUBSEQUENT DEED INCLUDING THE EASEMENT WAS A VALID CORRECTION DEED; THE STRANGER TO THE DEED RULE DID NOT APPLY BECAUSE THE DEEDS WITH THE EASEMENT CAME FROM THE SAME GRANTOR; THE EASEMENT WAS THEREFORE VALID AND DEFENDANTS SHOULD NOT HAVE BEEN ENJOINED FROM CLEARING IT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined a deed was correction deed which included an easement not mentioned in the prior deed. The Second Department also held that the “strange to the deed” rule did not apply because the deeds with the easement came from the same grantor. Therefore the easement was enforceable and defendants […]

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ALTHOUGH INSURANCE LAW 3420(d)(2) REQUIRING TIMELY NOTICE OF THE DISCLAIMER OF INSURANCE COVERAGE DOES NOT APPLY TO THIS BREACH OF CONTRACT (AS OPPOSED TO A PERSONAL INJURY) ACTION, THE DISCLAIMERS WERE UNTIMELY UNDER COMMON LAW WAIVER AND ESTOPPEL PRINCIPLES (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant insurance companies’ disclaimers of coverage of damages associated with the insured’s breach of contract were not timely. The insured county was found to have breached a contract and was assessed nearly $11,000,000 in damages: Contrary to the County’s contention, while Insurance Law § 3420(d)(2) imposes strict requirements […]

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