You are here: / Bruce Freeman

Entries by Bruce Freeman

PROTECTIVE ORDER ALLOWING THE PEOPLE TO HOLD BACK INFORMATION (OTHERWISE SUBJECT TO AUTOMATIC DISCLOSURE) UNTIL AFTER JURY SELECTION VACATED; MATTER REMITTED TO ALLOW THE DEFENSE TO OPPOSE THE REQUEST FOR THE ORDER; THE PROCEDURAL REQUIREMENTS OF THE NEW DISCOVERY PROVISIONS ADDRESSED IN SOME DETAIL (SECOND DEPT).

The Second Department, in an expedited appellate review of the issuance of a protective order by Supreme Court, vacated the protective order and sent the matter back to allow the defense to make an argument in opposition. The defendant is accused of stabbing his wife multiple times. The People, pursuant to CPL 245.70, ex parte, […]

, ,

THE COURT OF CLAIMS IN THIS MEDICAL MALPRACTICE ACTION CREDITED BOTH EXPERTS, ONE OF WHOM OPINED DEFENDANT WAS AT RISK FOR FUTURE HEART PROBLEMS; THEREFORE THE AWARD OF ZERO DAMAGES FOR FUTURE PAIN AND SUFFERING WAS ERROR; AWARD INCREASED BY $10,000 (THIRD DEPT).

The Third Department, reversing the Court of Claims, determined the conflicting expert evidence credited by the Court of Claims forced the conclusion claimant suffered some permanent damage to his heart. Therefore awarding nothing for future pain and suffering was error. The Third Department awarded an additional $10,000: … [T]he court accepted aspects of both experts’ opinions, crediting […]

FATHER’S NONVOLUNTARY UNION DUES SHOULD HAVE BEEN DEDUCTED FROM HIS INCOME FOR CALCULATION OF CHILD SUPPORT (SECOND DEPT).

The Second Department, reversing (modifying) Family Court, determined father’s nonvoluntary union dues should have been deducted from his income for the calculation of child support: Although no deduction from income for union dues is specifically mandated by the Family Court Act, there is an allowable deduction for “unreimbursed employee business expenses except to the extent […]

, ,

QUESTION OF FACT WHETHER HOSPITAL MAY BE VICARIOUSLY LIABLE FOR TREATMENT PROVIDED BY A NON-EMPLOYEE IN THE HOSPITAL EMERGENCY ROOM (SECOND DEPT).

The Second Department determined there was a question of fact whether the hospital, Good Samaritan, was vicariously liable for the alleged malpractice of a physician, Chin, who, although not a hospital employee, treated plaintiff in the hospital emergency room: “In general, under the doctrine of respondeat superior, a hospital may be held vicariously liable for […]

PLAINTIFF WAS PROVIDED WITH A LADDER WITHOUT RUBBER FEET WHICH SLID CAUSING PLAINTIFF TO FALL; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE OF ACTION PROPERLY GRANTED (SECOND DEPT).

The Second Department determined plaintiff was entitled to summary judgment on his Labor Law 240(1) cause action in this ladder fall case: We agree with the Supreme Court’s determination granting that branch of the plaintiff’s motion which was for summary judgment on the issue of liability on the Labor Law § 240(1) cause of action asserted […]

QUESTION OF FACT WHETHER THE ENCROACHMENT OF A FIRE ESCAPE HOVERING OVER A PORTION OF DEFENDANT’S PROPERTY WAS HOSTILE AND CONTINUOUS FOR THE PRESCRIPTIVE PERIOD (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion for summary judgment in this prescriptive easement action should not have been granted. A fire escape on plaintiff’s building hovers over a portion of defendant’s land, which had been used as parking lot. The defendant argued the encroachment by the fire escape was permissive, not hostile, […]

,

IT WAS ALLEGED ONE MAN INTENDED TO DOUSE ANOTHER WITH LIQUID IN A CUP BUT UNINTENTIONALLY THREW THE CUP ITSELF CAUSING INJURY; THERE WAS A QUESTION OF FACT WHETHER THE INJURY WAS CAUSED BY INTENTIONAL CONDUCT OR AN ACCIDENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff insurer’s (Unitrin’s) motion for summary judgment in this insurance-coverage dispute should not have been granted. Apparently Sullivan was in one car and the injured party, Ciminello, was in another car when Sullivan allegedly attempted to throw liquid that was in a cup into Ciminello’s car. It was alleged […]

, , , ,

SUPREME COURT SHOULD NOT HAVE, SUA SPONTE, GRANTED RELIEF NOT REQUESTED IN PLAINTIFFS’ UNOPPOSED MOTION AND SHOULD NOT HAVE CONSIDERED EVIDENCE NOT BEFORE IT; THE ORDER SETTLING A CLASS ACTION FOR UNPAID WAGES AND OVERTIME SHOULD NOT HAVE DECLARED INVALID CERTAIN OPT-OUT STATEMENTS WHICH WERE NOT REFERRED TO IN PLAINTIFFS’ MOTION AND WERE NOT OTHERWISE BEFORE THE COURT (SECOND DEPT).

The Second Department, reversing Supreme Court in this class action seeking unpaid wages and overtime, determined Supreme Court should not have. sua sponte, declared certain opt-out statements (opting out of the class action settlement) invalid because the issue was not raised by the plaintiff’s motion and the opt-out statements were not properly before the court: Pursuant […]

, ,

PEOPLE’S APPLICATION FOR AN UPWARD DEPARTURE NOT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE; EVIDENCE DEFENDANT WAS CHARGED BUT NEVER INDICTED OR CONVICTED DOES NOT MEET THE CLEAR AND CONVINCING STANDARD (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the People’s application for an upward department was not supported by clear and convincing evidence. Evidence defendant was charged but not indicted or convicted does not meet the clear and convincing standard: A departure from the presumptive risk level is generally the exception, not the rule (see Sex Offender […]

, ,

PLAINTIFF’S COUNSEL’S REMARKS DURING SUMMATION DEPRIVED DEFENDANT RESIDENTIAL HEALTH CARE FACILITY OF A FAIR TRIAL; OVER $1 MILLION JUDGMENT IN THIS NEGLIGENCE/PUBLIC-HEALTH-LAW ACTION REVERSED (SECOND DEPT).

The Second Department, reversing the over $1 million judgment in this negligence and Public-Health-Law-2801-d violation case, determined plaintiff’s counsel’s remarks in summation required a new trial. Plaintiff’s decedent, who was at risk for falling, fell after getting up from a wheelchair at defendant residential health care facility and ultimately died: “[L]itigants are entitled, as a […]

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy