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Entries by Bruce Freeman

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PETITION ALLEGED MOTHER FAILED TO GIVE ADHD MEDICATION TO THE CHILDREN; THE NEGLECT PETITION SHOULD NOT HAVE BEEN DISMISSED WITHOUT A HEARING; BECAUSE FAMILY COURT ADDRESSED THE MERITS OF THE MOTION TO REARGUE THE MOTION WILL BE DEEMED TO HAVE BEEN GRANTED RENDERING THE ORDER APPEALABLE AS OF RIGHT (THIRD DEPT).

The Third Department, reversing Family Court, determined the neglect proceeding should not have been dismissed without a hearing. The petition alleged mother was not providing ADHD medication to the children and the children were unable to focus in school as a result. The Third Department noted that, although the denial of a motion to reargue […]

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QUESTIONS OF FACT PRECLUDED SUMMARY JUDGMENT IN THIS CONSTRUCTIVE TRUST AND UNJUST ENRICHMENT ACTION (THIRD DEPT).

The Third Department, reversing Supreme Court, determined that summary judgment was not available in this dispute about ownership of land and personal property. Plaintiff alleged that land, personal property and the the proceeds of the timber business were his, despite the fact that the land, personal property and bank account, based upon the documentary evidence, appeared […]

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LOCAL LAW CREATING A SENIOR LIVING DISTRICT (SLD) WAS INVALID BECAUSE APPROVAL BY A SUPERMAJORITY OF THE TOWN BOARD WAS REQUIRED; BECAUSE THE COMPLAINT SOUGHT A DECLARATORY JUDGMENT DISMISSAL OF THE COMPLAINT WAS NOT PROPER, SUPREME COURT SHOULD HAVE RULED ON THE DECLARATORY JUDGMENT (THIRD DEPT).

The Third Department, reversing Supreme Court, in a full-fledged opinion by Justice Garry, in a matter of first impression, determined a local law rezoning agricultural land as a senior living district (SLD) where a senior living community could be constructed was invalid. In order to avoid the requirement that the local law be approved by a supermajority […]

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SIDEWALK DAMAGE CAUSED BY TREE ROOTS DOES NOT CONSTITUTE AFFIRMATIVE NEGLIGENCE BY THE CITY; THEREFORE THE CITY’S MOTION FOR SUMMARY JUDGMENT IN THIS SIDEWALK SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the city’s alleged failure address sidewalk defects caused by tree roots was not affirmative negligence and therefore was not actionable in this slip and fall case: “Administrative Code of the City of New York § 7-210, which became effective September 14, 2003, shifted tort liability for injuries arising […]

GENERAL CONTRACTOR DID NOT EXERCISE ANY SUPERVISORY CONTROL OVER PLAINTIFF’S WORK AND THEREFORE WAS NOT LIABLE FOR AN INJURY ARISING FROM THE MANNER OF PLAINTIFF’S WORK FOR A SUBCONTRACTOR; LABOR LAW 200 CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the Labor Law 200 action against the general contractor, El Sol. should have been dismissed. The accident involved the manner in which the work was done, not a dangerous condition. Plaintiff was employed by a subcontractor. Because El Sol did not exercise any supervisory control over plaintiff’s work, […]

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PLAINTIFF’S CLAIM IN THIS PEDESTRIAN HIT-AND-RUN ACTION WAS NOT AUTOMATICALLY ASSIGNED TO THE MOTOR VEHICLE ACCIDENT INDEMNIFICATION CORPORATION WHEN PLAINTIFF ACCEPTED A SETTLEMENT; PLAINTIFF’S ACTION AGAINST THE DEFENDANT TAXICAB COMPANY AND THE DRIVERS WHO WERE ON DUTY WHEN PLAINTIFF WAS STRUCK SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the plaintiff’s acceptance of a settlement from the Motor Vehicle Accident Indemnification Corporation (MVAIC) did not automatically assign plaintiff’s claim to the MVAIC. Therefore plaintiff’s action against a taxi company and eight drivers who were on duty when plaintiff, a pedestrian, was struck by a taxicab, should not […]

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ALTHOUGH SOME MONETARY RELIEF WAS SOUGHT, THE ESSENTIAL NATURE OF THE CLAIM WAS A DECLARATION VERIZON HAD WRONGFULLY DISCONTINUED CLAIMANT’S LIFELINE SERVICE; THEREFORE THE ACTION WAS PROPERLY DISMISSED AS OUTSIDE THE JURISDICTION OF THE COURT OF CLAIMS (SECOND DEPT).

The Second Department noted that the jurisdiction of the Court of Claims is generally limited to money damages. Therefore the action, which was seeking a ruling that claimant’s Verizon Lifeline Service was wrongfully discontinued, was properly dismissed: The Court of Claims is a court of limited jurisdiction determined by the Constitution and statute (see NY Const […]

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THE JURY SHOULD HAVE BEEN INSTRUCTED ON THE IMPLIED ASSUMPTION OF RISK DOCTRINE IN THIS SKIING ACCIDENT CASE, DEFENDANTS’ MOTION TO SET ASIDE THE $3,000,000/$15,000,000 VERDICT SHOULD HAVE BEEN GRANTED; THE DAMAGES AMOUNT IS NOT SUPPORTED BY THE RECORD (SECOND DEPT).

The Second Department, ordering a new trial, determined defendants’ motion to set aside the verdict should have been granted.  The jury should have been instructed on implied assumption of risk in this skiing accident case involving a nine-year-old novice skier. Plaintiff struck a pole and fractured her femur. The jury awarded $3,000,000 in past damages and […]

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NOTICE REQUIREMENTS OF RPAPL 1304 NOT PROVEN; PLAINTIFF BANK’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED IN THIS FORECLOSURE ACTION (SECOND DEPT)

The Second Department, reversing Supreme Court, determined the proof of compliance with the RPAPL 1304 notice requirements was deficient: … [T]he plaintiff failed to submit an affidavit of service or any evidence of mailing by the post office demonstrating that it properly served the defendant pursuant to the terms of RPAPL 1304 … . Contrary […]

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ALTHOUGH PLAINTIFF’S REPEATED FAILURE TO APPEAR FOR THE CONTINUATION OF HER DEPOSITION WAS WILLFUL, STRIKING THE COMPLAINT WAS TOO SEVERE A SANCTION (SECOND DEPT).

The Second Department, reversing (modifying Supreme Court) determined striking the complaint was too severe a sanction for plaintiff’s repeated failure to appear for the continuation of her deposition: … [T]he plaintiff’s repeated failure to appear for her continued deposition, coupled with her failure to demonstrate a reasonable excuse for that failure, supports an inference that […]

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