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Entries by Bruce Freeman

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GRAND JURY EVIDENCE WAS SUFFICIENT TO SUPPORT THE STRANGULATION COUNT DESPITE THE ABSENCE OF A DEFINITION OF THE “STUPOR” ELEMENT OF THE OFFENSE (FOURTH DEPT).

The Fourth Department, reversing County Court on a People’s appeal and reinstating the strangulation count, determined the evidence before the grand jury was sufficient to charge strangulation. County Court had reduced the charge to criminal obstruction of breathing or blood circulation. County Court ruled the People had not presented evidence sufficient to support the theory […]

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INSUFFICIENT EVIDENCE DEFENDANT HAD CONSTRUCTIVE NOTICE OF A LOOSE PANEL ON A SELF CHECK OUT MACHINE IN DEFENDANT’S STORE; THE PANEL ALLEGEDLY FELL OFF AND INJURED PLAINTIFF’S FOOT; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the defendant’s (BJ’s) motion for summary judgment in this personal injury case should have been granted. There was insufficient evidence BJ’s had constructive notice that a metal panel on a self-check-out machine could detach and fall off. It was alleged plaintiff’s foot was injured by the panel: It […]

DEFENDANT MANUFACTURER OF METAL ROOFING WAS A CONTRACTOR WITHIN THE MEANING OF LABOR LAW 240 (1) BECAUSE IT HAD THE AUTHORITY TO EXERCISE CONTROL OVER PLAINTIFF’S WORK, EVEN IF IT DID NOT DO SO; PLAINTIFF SHOULD HAVE BEEN AWARDED SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION STEMMING FROM A FALL FROM A ROOF WHERE THE METAL ROOFING WAS BEING INSTALLED (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined defendant Union was a contractor within the meaning of Labor Law 240 (1) and plaintiff was entitled to summary judgment against Union on his Labor Law 240 (1) cause of action stemming from his fall from the roof of a residence where metal roofing manufactured by Union […]

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DEFENDANT, IN VIOLATION OF THE VEHICLE AND TRAFFIC LAW, FAILED TO YIELD THE RIGHT OF WAY WHEN PULLING OUT OF A PARKING LOT IN THIS TRAFFIC ACCIDENT CASE; PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined plaintiffs’ motion for summary judgment in this traffic accident case should have been granted. Defendant failed to yield the right of way when entering the roadway from a parking lot: “It is well settled that a driver who has the right-of-way is entitled to anticipate that the drivers […]

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EVIDENCE DID NOT ESTABLISH AS A MATTER OF LAW THAT THE INSURED’S WATER-DAMAGE CLAIM WAS FRAUDULENTLY INFLATED; INSURER WAS NOT ENTITLED TO SUMMARY JUDGMENT DISCLAIMING COVERAGE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the defendant insurer (Allegany) did not present sufficient evidence an inflated water-damage claim to warrant disclaiming coverage. The insurer’s summary judgment motion should not have been granted: Allegany failed to meet its initial burden on its motion of establishing as a matter of law that the claim was inflated […]

PLAINTIFF GOLFER ASSUMED THE RISK OF SLIPPING AND FALLING ON A LANDING WET FROM RAIN AT THE TWELFTH HOLE OF DEFENDANT GOLF COURSE (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court, determined plaintiff assumed the risk of slipping and failing on a stairway landing wet from rain. The stairway is used to accessed the tee box on the twelfth hole of defendant golf course: “As a general rule, participants properly may be held to have consented, by their participation, to […]

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THE RELEASE DID NOT APPLY TO THE ALLEGATIONS OF FRAUD IN THE INDUCEMENT AND THERE WAS A QUESTION OF FACT WHETHER PLAINTIFFS JUSTIFIABLY RELIED ON THE ALLEGED MISREPRESENTATIONS; THE FRAUD IN THE INDUCEMENT CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determine plaintiffs’ action for fraud in the inducement should not have been dismissed. The release did not require dismissal and there was a question of fact whether plaintiffs justifiably relied on the alleged misrepresentations: … [D]efendants failed to meet their initial burden of establishing, as a matter of law, […]

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GENERAL OBLIGATIONS LAW 17-105, NOT 17-101, APPLIES TO THE REVIVAL OF AN EXPIRED STATUTE OF LIMITATIONS FOR A MORTGAGE FORECLOSURE; THE RELEVANT DOCUMENTS HERE DID NOT MEET THE CRITERIA OF SECTION 17-105; FORECLOSURE WAS THEREFORE TIME-BARRED (FOURTH DEPT).

The Fourth Department, in a full-fledged opinion by Justice Peradotto, determined that General Obligations Law 17-105, not 17-101, applied to the revival of an expired statute of limitations for foreclosure of a mortgage and the documents in this case did not meet the criteria of section 17-105. Therefore the foreclosure action was time-barred. The court […]

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ACTION TO ENFORCE A FOREIGN JUDGMENT AGAINST A DELAWARE DISSOLVED LIMITED LIABILITY COMPANY COULD NOT BE MAINTAINED BECAUSE THE CERTIFICATE OF CANCELLATION HAS NOT BEEN NULLIFIED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the action to domesticate and enforce a foreign judgment after defendant corporation had been dissolved could not be maintained: Plaintiff commenced this action against defendant, a Delaware limited liability company, to domesticate and enforce a foreign judgment in its favor several months after defendant had been dissolved and […]

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