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Entries by Bruce Freeman

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FAMILY COURT CAN EXERCISE JURISDICTION OVER A NONRESIDENT PUTATIVE FATHER IN A PATERNITY ACTION AS LONG AS THE FACTS HAVE A CONNECTION WITH NEW YORK STATE; THE PETITION SHOULD NOT HAVE BEEN DISMISSED WITH PREJUDICE (FOURTH DEPT).

The Fourth Department determined the paternity petition should not have been dismissed with prejudice because there are circumstances where the New York Family Court can obtain jurisdiction over an out-of-state respondent in the paternity action: In a paternity proceeding, personal jurisdiction over a nonresident putative father may be established pursuant to Family Court Act § […]

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THE MUNICIPALITY DID NOT OWE A SPECIAL DUTY TO PLAINTIFF’S DECEDENT WHO CALLED 911 DURING A SNOW STORM AFTER HIS CAR HAD BECOME STUCK AND WAS FOUND DEAD IN HIS CAR THREE DAYS LATER (FOURTH DEPT).

The Fourth Department determined the municipality was entitled to summary judgment in this wrongful death action. Plaintiff’s decedent’s car was stuck in snow during a snow storm. He called 911 three times over the course of seven hours and was found dead in his car three days later: Preliminarily, we conclude that, during the events that […]

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PLAINTIFF DID NOT RAISE A QUESTION OF FACT WHETHER THE COUNTY WAS AFFIRMATIVELY NEGLIGENT IN THIS ICE AND SNOW SLIP AND FALL CASE; THEREFORE THE COUNTY’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the county’s motion for summary judgment in this slip and fall case should have been granted. The county demonstrated it did not have written notice of the condition and was not affirmatively negligent: The complaint alleged that a dangerous or defective condition existed as a result of defendant’s […]

DEFENDANT WAS NOT PRESENT AT A SIDEBAR CONCERNING THE BIAS OF A PROSPECTIVE JUROR, CONVICTION REVERSED (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction, determined defendant was deprived of his right to be present at a side bar concerning the bias of a prospective juror: A … prospective juror was peremptorily excused by defendant’s counsel, however, and, during a sidebar conference at which defendant was not present, that juror was questioned “to search […]

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DEFENDANT’S HOME WAS CONSTRUCTED ABOUT EIGHT FEET FROM THE PROPERTY LINE VIOLATING THE COVENANT OR RESTRICTION REQUIRING TEN FEET; PLAINTIFF, AFTER A BALANCING OF THE EQUITIES, WAS NOT, HOWEVER, ENTITLED TO EQUITABLE RELIEF (FOURTH DEPT).

The Fourth Department determined the defendant had violated a covenant or restriction imposed on property owners in a subdivision, but that plaintiff was not entitled to equitable relief. Defendant had constructed the home about eight feet from the property line and the covenant or restriction required ten feet: … [D]efendant knew, or should have known, […]

FALL WHILE UNLOADING A FLATBED TRUCK CAN BE A COVERED ACTIVITY AND INVOLVED AN ELEVATION-RELATED RISK; INDUSTRIAL CODE VIOLATION FIRST ASSERTED IN OPPOSITION PAPERS SHOULD NOT HAVE BEEN REJECTED; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS LABOR LAW 240 (1) AND 241 (6) ACTION SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant’s motion for summary judgment on the Labor Law 240 (1) and 241 (6) causes of action should not have been granted. Plaintiff was unloading a man lift from a flatbed truck and was on the man lift when it rolled off the truck. The Fourth Department determined: […]

NO NEED TO SHOW THE LADDER WAS DEFECTIVE IN THIS LABOR LAW 240 (1) ACTION; IT WAS SUFFICIENT TO SHOW THE LADDER WAS UNSECURED AND FELL WHEN PLAINTIFF WAS STRUCK BY DEBRIS (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 using an unsecured ladder when he was struck by debris causing him and the ladder to fall. There was no need to show the ladder was defective. It […]

QUESTION OF FACT WHETHER THE PRESUMPTION A CERTIFICATE OF DEPOSIT (CD) HAS BEEN PAID OUT WITHIN 20 YEARS OF WHEN IT CAME DUE APPLIED TO CD’S IN PLAINTIFF’S DECEASED HUSBAND’S IRA WHICH WERE RENEWED AUTOMATICALLY (FIRST DEPT).

The First Department, reversing Supreme Court, determined the defendant bank’s motion for summary judgment in this action seeking the payment of certificates of deposit (CD’s) held in an independent retirement account (IRA) should not have been granted. The presumption that a CD has been paid out within 20 years of when it came due may […]

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HEARSAY STATEMENTS OF THE ALLEGED VICTIM WERE NOT CORROBORATED, NEGLECT FINDING REVERSED (FIRST DEPT).

The First Department, reversing the neglect finding, determined the hearsay statements of the alleged victim were not corroborated: The finding of neglect was not supported by a preponderance of the evidence. “Unsworn out-of-court statements of the victim may be received and, if properly corroborated, will support a finding of abuse or neglect” … . Here, […]

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SUPREME COURT SHOULD NOT HAVE SEALED THE ENTIRE COURT RECORD, REDACTION IS APPROPRIATE FOR TRADE SECRETS (FIRST DEPT).

The First Department, reversing Supreme Court, determined the entire court record should not have been sealed. The facts were not discussed, but the court noted redaction is appropriate to protect trade secrets, confidential business information or proprietary information: We reverse the order of the motion court for two reasons. First, the motion court erred by […]

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