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AN EYEWITNESS TO PLAINTIFF’S SLIP AND FALL TESTIFIED PLAINTIFF TOLD HER SHE TRIPPED OVER A MUDSILL BECAUSE OF DIM LIGHTING; PLAINTIFF’S STATEMENT WAS ADMISSIBLE AS AN EXCITED UTTERANCE; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this slip and fall case should not have been granted. Although plaintiff IHayward) testified she did not know why she tripped on a mudsill, an eyewitness (Espy) testified plaintiff told her she tripped because of dim lighting. Plaintiff’s statement was deemed admissible […]

PLAINTIFF WAS STRUCK BY A FALLING OBJECT; COMPARATIVE NEGLIGENCE IS NOT A DEFENSE TO A LABOR LAW 240(1) CAUSE OF ACTION; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON HIS LABOR LAW 240(1), 200 AND COMMON LAW NEGLIGENCE CLAIMS SHOULD HAVE BEEN GRANTED; THERE WAS A QUESTION OF FACT ABOUT WHETHER ONE OF THE DEFENDANT’S EXERCISED SUPERVISORY CONTROL OVER THE SITE (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on his Labor Law 240(1) cause of action stemming from his being struck with a falling object. The allegation plaintiff should not have been where he was is an allegation of comparative negligence which is not a defense. Plaintiff also should have […]

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DEFENDANTS DID NOT DEMONSTRATE AS A MATTER OF LAW THAT THERE WAS PROBABLE CAUSE FOR PLAINTIFF’S ARREST FOR THE CHARGED CRIMES OR FOR ANY UNCHARGED CRIMES; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this false arrest, false imprisonment, malicious prosecution, assault and battery action should not have been granted because defendants did not demonstrate as a matter of law that there was probable cause for plaintiff’s arrest. When plaintiff flagged down the police he told […]

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RES IPSA LOQUITUR NEEDN’T BE ALLEGED IN THE NOTICE OF CLAIM OR THE COMPLAINT BECAUSE IT IS NOT A THEORY OF LIABILITY, IT IS AN EVIDENTIARY RULE; NOTICE OF A DANGEROUS CONDITION CAN BE INFERRED UNDER THE RES IPSA LOQUITUR DOCTRINE (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff properly raised res ipsa loquitur in opposition to defendant’s motion for summary judgment even though the notice of claim and the complaint did not allege it. Res ipsa loquitur is not a theory of liability, it is a rule of evidence: Plaintiff investigated a hissing sound coming […]

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NYC POLICE OFFICERS IN THE TIER 3 RETIREMENT SYSTEM ARE ENTITLED TO CREDIT FOR PERIODS OF UNPAID CHILDCARE LEAVE (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Fahey, reversing the Appellate Division, over a two-judge dissent, determined that retiring police officers are entitled to credit for the unpaid leave for child care. The appeal raised a question of statutory interpretation. The Court of Appeals found that the relevant provision of the NYC […]

AFTER DEFENSE COUNSEL REPEATEDLY USED THE N-WORD (QUOTING A CO-DEFENDANT) IN CROSS-EXAMINING THE VICTIM A JUROR STOOD UP AND SAID SHE FOUND THE WORD VERY OFFENSIVE AND WOULD LEAVE IF COUNSEL USED THE WORD AGAIN; THE TRIAL COURT DID NOT CONDUCT A BUFORD HEARING TO DETERMINE WHETHER THE JUROR SHOULD BE DISQUALIFIED; CONVICTION AFFIRMED OVER A THREE-JUDGE DISSENT (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge DeFiore, over a three-judge dissent, determined there was no need for the trial court to conduct a Buford  hearing to determine whether a juror should be disqualified. Defense counsel, quoting the words used by a co-defendant, repeatedly said the “n-word.” A juror stood up and said she […]

NEW YORK RECOGNIZES CROSS-JURISDICTIONAL TOLLING OF THE STATUTE OF LIMITATIONS WHEN A CLASS ACTION IS FILED IN ANOTHER STATE OR FEDERAL COURT; THE TOLLING ENDS UPON DISMISSAL OF THE OUT-OF-STATE ACTION, EVEN WHEN NOT ON THE MERITS (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge Stein, over a three-judge partial dissent, answering certified questions from the Second Circuit, determined: (1) New York recognizes the tolling of the statute of limitations for absent members of putative class actions filed in other state and federal courts (cross-jurisdictional tolling); and (2) the tolling of […]

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REFEREE’S REPORT IN THIS FORECLOSURE ACTION RELIED UPON HEARSAY AND SHOULD NOT HAVE BEEN CONFIRMED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the referee’s report should not have been relied upon in this foreclosure action because the report was based on hearsay: The referee relied on an affidavit sworn to October 2, 2018 by an assistant vice president of plaintiff’s loan servicer, who asserted that, according to the books and records […]

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THE CURB AND TREE WELL ARE NOT AREAS OF A SIDEWALK WHICH ARE THE RESPONSIBILITY OF THE ABUTTING PROPERTY OWNER; THE PROPERTY OWNER’S/MANAGER’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the areas near the sidewalk where plaintiff slipped and fell were the curb and a tree well. Both the curb and the tree well, according to the NYC Administrative Code, are not the responsibility of the abutting property owner (Gore/UA): The owner of premises abutting the public sidewalk […]

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