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Entries by Bruce Freeman

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VERDICT FINDING THE SCHOOL DISTRICT WAS NEGLIGENT BUT FURTHER FINDING THE NEGLIGENCE WAS NOT THE PROXIMATE CAUSE OF THE STUDENT’S SUICIDE WAS NOT AGAINST THE WEIGHT OF EVIDENCE; PLAINTIFFS ALLEGED BULLYING AT SCHOOL CAUSED THEIR SON’S SUICIDE (THIRD DEPT).

The Third Department determined the verdict finding the school district was negligent but further finding the negligence was not the proximate cause of plaintiff-student’s suicide was not against the weight of the evidence. Plaintiffs alleged bullying at school was the reason for their son’s suicide and claimed the school was liable under a negligent-supervision theory: […]

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MEMBER OF LLC WHICH OWNED A MOBILE HOME PARK IS PERSONALLY LIABLE, PURSUANT TO THE RESPONSIBLE CORPORATE OFFICER DOCTRINE, FOR AN $800,000 PENALTY IMPOSED FOR FAILING TO COMPLY WITH AN ORDER ISSUED BY THE DEPARTMENT OF ENVIRONMENTAL PROTECTION REQUIRING SEWAGE-TREATMENT MEASURES (THIRD DEPT).

The Third Department determined Burr, one of two members of a limited liability company, C & J, was properly held personally liable for the violation of an administrative order issued by the Department of Environmental Conservation (DEP). C & J owned a mobile home park and the administrative order concerned the treatment of waste from […]

PLAINTIFF BANK’S ATTEMPT TO DE-ACCELERATE THE MORTGAGE JUST BEFORE THE STATUTE OF LIMITATIONS RAN WAS PROPERLY REJECTED (THIRD DEPT).

The Third Department, affirming the dismissal of the foreclosure action, held that the plaintiff bank’s attempt to de-accelerate the mortgage just before the statute of limitations ran was properly rejected: As stated by the [2nd] Department, “acceleration notices must be clear and unambiguous to be valid and enforceable, . . . [and] de-acceleration notices must […]

HUSBAND DID NOT DEMONSTRATE ENTITLEMENT TO 50% OF THE APPRECIATION OF WIFE’S SEPARATE PROPERTY IN THIS DIVORCE ACTION (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court in this divorce action, determined 50% of the appreciation of the wife’s separate property should not have been distributed to the husband: The court improperly distributed 50% of the appreciation of the wife’s separate real property because the husband failed to establish his entitlement to it. The husband […]

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RESPONDENT, THE PREVAILING PARTY IN AN ARBITRATION, WAS ENTITLED TO ATTORNEY’S FEES FOR THE SUBSEQUENT ARTICLE 75 PROCEEDING TO VACATE THE AWARD AND FOR THE APPEAL TO THE APPELLATE DIVISION (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined the respondent, who prevailed in an arbitration proceeding, was entitled to attorney’s fees for the subsequent Article 75 proceedings and appeal to the Appellate Division: Judgment … awarding respondent attorney’s fees in the sum total of $980 in connection with a no-fault arbitration award … [remanded] to […]

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AFTER JURISDICTIONAL DISCOVERY, PLAINTIFF DID NOT DEMONSTRATE NEW YORK HAD JURISDICTION OVER THREE OF FOUR NEW JERSEY DEFENDANTS IN THIS MEDICAL MALPRACTICE CASE; WITH RESPECT TO ONE NEW JERSEY DEFENDANT, THE JURISDICTION ISSUE MUST BE DECIDED BY THE JURY (FIRST DEPT).

The First Department, reversing Supreme Court, determined that New Jersey defendant Princeton Radiology Associates (PRO) and the associated defendant doctors (Tsai and Chon) had demonstrated New York did not have jurisdiction over them in this medical malpractice action. With regard to another related New Jersey defendant, Princeton Procure Management, LLC (PPM), the First Department held its lack-of-jurisdiction […]

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LATE FEES IMPOSED BY THE LANDLORD MAY CONSTITUTE USURIOUS INTEREST; APPEAL HEARD DESPITE PRO SE DEFENDANT-TENANT’S FAILURE TO PERFECT THE APPEAL; THE APPEAL RAISED A PURELY LEGAL ISSUE WHICH IS DETERMINATIVE (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant tenant raised a question whether the late fees assessed by the landlord constituted usurious interest. The 1st Department heard the appeal despite the pro se defendant’s failure to perfect the appeal from the correct judgment, noting that the issue is purely legal: … [T]he court should have […]

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THERE IS A QUESTION OF FACT WHETHER A DRUG, WHICH CAN DISSOLVE BLOOD CLOTS IN MINUTES, SHOULD HAVE BEEN ADMINISTERED TO PLAINTIFF WHO WAS SUFFERING FROM A PULMONARY EMBOLISM UPON ADMISSION; SUPREME COURT REVERSED; TWO-JUSTICE DISSENT (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Manzanet-Daniels, over a two-justice dissent, determined that the defendants’ motion for summary judgment in this medical malpractice case should not have been granted. The opinion is fact-specific and too detailed to fairly summarize here. The majority concluded there was a question of fact whether the administration of […]

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GENERAL OBLIGATIONS LAW 5-321 VOIDS A LEASE PROVISION ABSOLVING THE LANDLORD OF LIABILITY FOR DAMAGE TO A TENANT’S PROPERTY CAUSED BY THE LANDLORD’S NEGLIGENCE, BUT DOES NOT VOID A LEASE PROVISION ABSOLVING THE LANDLORD OF LIABILITY FOR THE TENANT’S LOST PROFITS CAUSED BY THE LANDLORD’S NEGLIGENCE (FIRST DEPT).

The First Department noted that the exculpatory clauses in the lease which relieved the landlord from liability for the tenant’s lost profits caused by the landlord’s negligence is not void pursuant to General Obligations Law (GOL) 5-321. GOL 5-321 refers only to property damage, not lost profits: The claim for lost profits, however, was properly […]

PLAINTIFF’S LABOR LAW 240(1) AND 241(6) CAUSES OF ACTION SHOULD NOT HAVE BEEN DISMISSED; PLAINTIFF FELL ATTEMPTING TO USE AN INVERTED BUCKET TO STEP UP TO AN ELEVATED PLATFORM (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s Labor Law 240(1) and 241(6) causes of action should not have been dismissed. Plaintiff fell attempting to use an inverted bucket to access an elevated platform: The protection of Labor Law § 240(1) encompasses plaintiff[‘s] … fall while trying to access an elevated work platform by stepping […]

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