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Entries by Bruce Freeman

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ZONING BOARD’S DENIAL OF A VARIANCE WAS BASED PRIMARILY ON COMMUNITY OPPOSITION; THE DENIAL WAS PROPERLY ANNULLED BY SUPREME COURT (THIRD DEPT).

The Third Department determined the Board of Zoning Appeals improperly denied petitioner’s application for a variance based primarily on community opposition: … [W]e cannot say that respondent’s determination to deny the area variance was rational. Respondent’s findings reflect that an environmental review of the proposed project concluded that there would be no significant impacts to, […]

CLAIMANT, WHO WAS ON THE JOB OUT-OF-TOWN, WAS INJURED IN A TRAFFIC ACCIDENT WHILE DRIVING FROM HIS HOTEL TO WHERE THE EMPLOYEES PICKED UP THEIR TRUCKS; CLAIMANT WAS ENTITLED TO WORKERS’ COMPENSATION BENEFITS UNDER THE TRAVELING EMPLOYEE EXCEPTION (THIRD DEPT).

The Third Department determined claimant was entitled to workers’ compensation benefits for injuries stemming from a traffic accident on his way to the site where the employees pickup up their bucket trucks for tree-trimming work. Claimant was working about five or six hours from his home and his employer was paying a portion of his […]

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SERVICES PROVIDED TO A DISABLED MAN BY THE NYS OFFICE OF PEOPLE WITH DEVELOPMENTAL DISABILITIES COULD NOT BE CURTAILED BECAUSE OF A LACK OF FUNDS (THIRD DEPT).

The Third Department determined the NYS Office for People with Developmental Disabilities (OPWDD) was properly prohibited from curtailing services to and disabled man, M,D., because of a lack of funds: Even if the catch-all of “any other relevant considerations advanced by the parties” (OPWDD Policy and Procedures, Topic No. CP-10 [Rev (Feb. 1995)], at 4, […]

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NONSIGNATORY NOT BOUND BY ARBITRATION CLAUSE IN ENGAGEMENT LETTER (FIRST DEPT).

The First Department, noting that Supreme Court should have decided whether a nonsignatory was bound by an arbitration clause and deciding the issue in the interest of judicial economy, determined the nonsignatory was not bound: Millennium Lab Holdings, Inc. and Millennium Lab Holdings II, LLC (Millennium Holdings, LLC), pursuant to an engagement letter, retained petitioner […]

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OWNER OF A SOLAR ENERGY SYSTEM INSTALLED ON SCHOOL DISTRICT PROPERTY WAS ENTITLED TO THE STATUTORY EXEMPTION FROM REAL PROPERTY TAX DESPITE THE SCHOOL DISTRICT’S RESOLUTION OPTING OUT OF THE EXEMPTION; THE RESOLUTION WAS NEVER FILED AS REQUIRED BY THE REAL PROPERTY TAX LAW (THIRD DEPT).

The Third Department determined the petitioner, Laertes Solar, the owner of a solar energy system installed on school district property, was entitled to the statutory exemption from property tax on the system. The school district had adopted a resolution opting out of the exemption. But the resolution had never been filed with the NYS Department […]

PLAINTIFF ENTITLED TO WORKERS’ COMPENSATION BENEFITS FOR INJURIES CAUSED BY A CO-EMPLOYEE’S INTENTIONAL TORT (ASSAULT) (FIRST DEPT).

The First Department determined plaintiff was entitled to workers’ compensation benefits for injuries from an intentional tort (assault) by an employee: Plaintiff alleged that he was injured when, as he was attempting to sit down, defendant, his coworker, pulled his chair out from under him, causing him to fall to the ground. After plaintiff’s accident, […]

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THE APPEAL WAS RENDERED MOOT BY DEFENDANT’S TRANSFER OF THE PROPERTY AFTER SUPREME COURT RULED DEFENDANT HAD TITLE TO THE PROPERTY (THIRD DEPT).

The Third Department dismissed the appeal as moot. Property which had been validly foreclosed by defendant was transferred to a third party. Plaintiff had brought an action pursuant to Real Property Actions and Proceedings Law (RPAPL) Article 15 to determine its rights to a portion of the foreclosed property. Supreme Court granted defendant’s motion for […]

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MOTION TO VOLUNTARILY DISCONTINUE THE FORECLOSURE ACTION WAS PROPERLY GRANTED WITHOUT PREJUDICE (THIRD DEPT).

he Third Department determined plaintiff’s motion to voluntarily discontinue the foreclosure action (CPLR 3217(b)) was properly granted without prejudice. The litigation was still in the early stages and, although defendant had interposed a counterclaim, defendant did not move for a default judgment within a year and thereby abandoned the counterclaim: Although this action had been […]

LABOR LAW 200, 241(6) AND COMMON LAW NEGLIGENCE CAUSES OF ACTION PROPERLY SURVIVED SUMMARY JUDGMENT IN THIS WORKPLACE SLIP AND FALL CASE (FIRST DEPT).

The First Department determined plaintiff’s Labor law 200, 241(6)  and common law negligence causes action properly survived summary judgment in this workplace slip and fall case. Plaintiff fell going down a staircase and there was evidence that dust and perhaps paint was on the stairway associated with sanding and painting the walls. Although the stairway was […]

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AFTER THE INITIAL INVESTIGATION AT THE SCENE AND AFTER DEFENDANT WAS HANDCUFFED AND SEATED IN THE BACK OF THE POLICE CAR, THE OFFICER ASKED DEFENDANT “WHAT HAPPENED?”; DEFENDANT’S RESPONSE SHOULD HAVE BEEN SUPPRESSED; CONVICTION REVERSED (THIRD DEPT).

The Third Department, reversing defendant’s conviction, determined statements made by defendant when he was handcuffed in the back of a police car should have been suppressed. The officer (Nellis) asked the defendant “What happened?” after the initial investigation was over: After Nellis arrived at the scene and discovered defendant in the driveway, he entered the […]

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