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Entries by Bruce Freeman

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ALTHOUGH THE SCHOOL DISTRICT HAD TIMELY KNOWLEDGE OF THE INCIDENT AND THE PETITIONER’S INJURIES, IT DID NOT HAVE TIMELY KNOWLEDGE OF THE FACTS THAT UNDERLIE THE LEGAL THEORIES OF LIABILITY; THEREFORE THE PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined petitioner, a nurse hired to care for M.C., an infant, was not entitled to leave to file a late notice of claim against the school district for injuries allegedly suffered when M.C. struck her in a stairway at M.C.’s elementary school. Although there was an incident report and […]

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HERE MOTHER’S CONCLUSORY AFFIDAVIT CLAIMING SHE WAS NOT SERVED WITH THE SUMMONS AND COMPLAINT BUT RATHER FOUND THE PAPERS ON THE GROUND IN FRONT OF THE FRONT DOOR WAS CONCLUSORY AND INSUFFICIENT TO REBUT THE PROCESS SERVER’S AFFIDAVIT; THEREFORE NO HEARING SHOULD HAVE BEEN HELD AND THE COMPLAINT SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the conclusory affidavit by defendants’ mother, alleging she was not served with the summons and complaint but rather found the papers on the ground in front of her front door, was not sufficient to rebut the process server’s affidavit demonstrating proper service upon a person identified as “aunt:” […]

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IF DEFENDANT DRIVER, COCUZZO, WAS AN EMPLOYEE OF DEFENDANT RANDALL AT THE TIME OF THE ACCIDENT, RANDALL WOULD BE VICARIOUSLY LIABLE; NOT SO IF COCUZZO WAS AN INDEPENDENT CONTRACTOR; THE “EMPLOYER VS INDEPENDENT CONTRACTOR” ISSUE MUST BE RESOLVED BY THE TRIER OF FACT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined whether defendant Randall Provisions, Inc. was vicariously liable for defendant Cocuzzo’ s traffic accident depended on a question of fact, i.e., whether Cocuzzo was an employee or an independent contractor. Therefore Randall’s motion for summary judgment should not have been granted: Randall submitted, inter alia, transcripts of the […]

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THE BANK’S UNILATERAL ATTEMPT TO REVOKE THE ACCELERATION OF THE DEBT IS PRECLUDED BY THE FORECLOSURE ABUSE PROTECTION ACT (FAPA) WHICH APPLIES RETROACTIVELY TO THIS CASE; THE FORECLOSURE ACTION IS TIME-BARRED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined a letter from the bank in this foreclosure action purporting to revoke a prior acceleration of the debt did not stop the running of the six-year statute of limitations. The action was therefore time-barred. The Second Department noted that the Foreclosure Abuse Prevention Act (FAPA), effective December 30, […]

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PLAINTIFF’S DEPOSITION TESTIMONY, SUBMITTED BY DEFENDANT PROPERTY OWNER IN THIS STAIRCASE SLIP AND FALL CASE, SUFFICIENTLY IDENTIFIED THE CAUSES OF PLAINTIFF’S FALL AND RAISED A QUESTION OF FACT ABOUT DEFENDANT’S CONSTRUCTIVE NOTICE OF THE CONDITION OF THE STAIRCASE; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the plaintiff’s deposition testimony adequately identified the causes of his staircase slip and fall and raised a question of fact about the defendant property owner’s constructive notice of the condition of the staircase. Therefore defendant’s motion for summary judgment should not have been granted: “In a premises liability […]

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HERE A DISPUTE AMONG BROTHERS ABOUT OWNERSHIP OF REAL PROPERTY WAS RESOLVED BY AN OPEN COURT STIPULATION (CONTRACT) WHICH CANNOT BE INVALIDATED ABSENT FRAUD, COLLUSION, MISTAKE OR ACCIDENT; THEREFORE SUPREME COURT SHOULD HAVE HELD A HEARING BEFORE APPROVING THE SUBSEQUENT APPORTIONMENT OF THE PROPERTY BY A RECEIVER WHICH WAS INCONSISTENT WITH THE STIPULATION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the receiver’s (Hafner’s) apportionment of the proceeds of the sale of real property owned by several brothers was inconsistent with the open court stipulation which had attempted to resolve the dispute before the receiver was appointed. Absent fraud, collusion, mistake or accident, a stipulation (contract) should not be […]

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DEFENDANT’S FOR CAUSE CHALLENGE TO A PROSPECTIVE JUROR WHO COULD NOT SAY HE WOULD NOT HOLD DEFENDANT’S FAILURE TO TESTIFY AGAINT HIM SHOULD HAVE BEEN GRANTED; A POLICE OFFICER WHO SPENT ONLY 10 OR 15 MINUTES WITH THE DEFENDANT SHOULD NOT HAVE BEEN ALLOWED TO IDENTIFY THE DEFENDANT IN A VIDEO, DESPITE THE CHANGE IN DEFENDANT’S APPEARANCE (SECOND DEPT).

The Second Department, reversing defendant’s convictions and ordering a new trial, determined defendant’s for cause challenge to a prospective juror who said he would hold defendant’s failure to testify against him should have been granted. Because there will be a new trial, the Second Department noted that a police officer who had limited contact with […]

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IN THIS CHILD VICTIMS ACT CASE ALLEGING DAILY SEXUAL ABUSE BY A TEACHER, THE PLAINTIFF’S AND A FACULTY MEMBER’S DEPOSITION TESTIMONY RAISED A QUESTION OF FACT ABOUT WHETHER DEFENDANT SCHOOL DISTRICT HAD CONSTRUCTIVE NOTICE OF THE TEACHER’S PROPENSITY FOR ABUSE AND THE ABUSE ITSELF (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant school district’s motion for summary judgment in this Child Victims Act case should not have been granted. Plaintiff alleged daily sexual abuse by a teacher. The school district submitted plaintiff’s deposition transcript and a faculty member’s deposition transcript in support of the summary judgment motion. The plaintiff’s […]

WHETHER THE TRENCH WAS THREE OR SEVEN FEET DEEP, PLAINTIFF SHOULD HAVE BEEN PROVIDED WITH A LADDER OR A RAMP TO DESCEND INTO IT BUT WAS TOLD TO JUMP DOWN; PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on the Labor Law 240(1) cause of action. Plaintiff was injured when he jumped into an excavated trench. Plaintiff testified that the trench was five to seven feet deep and he asked for a ladder but was told to jump down. There […]

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