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Entries by Bruce Freeman

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POLICIES DID NOT REQUIRE THE INSURER TO DEFEND THE INSURED, BUT DID REQUIRE THE INSURER TO PAY THE INSURED’S DEFENSE COSTS (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Friedman, determined that the terms of the policies at issue did not obligate the insurer to defend the insured, but do require the insurer to pay the insured’s defense costs. The opinion is too fact-specific and too comprehensive to fairly summarize here: In this insurance coverage action […]

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ELEVATOR MAINTENANCE COMPANY DID NOT DISPLACE THE BUILDING OWNER’S AND MANAGER’S DUTY TO KEEP THE ELEVATORS SAFE AND DID NOT LAUNCH AN INSTRUMENT OF HARM; IT’S MOTION FOR SUMMARY JUDGMENT IN THIS ELEVATOR ACCIDENT CASE SHOULD HAVE BEEN GRANTED; A VIOLATION OF THE NYC BUILDING CODE IS NOT NEGLIGENCE PER SE (FIRST DEPT).

The First Department, modifying Supreme Court in this elevator accident case, noted that violation of the NYC Building Code is some evidence of negligence but not negligence per se, and held that Dunwell’s (the elevator maintenance company’s) motion for summary judgment should have been granted. Dunwell had demonstrated two Espinal factors did not apply (it […]

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IN THIS ELEVATOR ACCIDENT CASE, ONE DEFENDANT FAILED TO DEMONSTRATE IT HAD NOT DISPLACED THE BUILDING OWNER’S DUTY TO KEEP THE PREMISES SAFE, AND ANOTHER DEFENDANT DEMONSTRATED IT DID NOT LAUNCH AN INSTRUMENT OF HARM; FAILING TO MAKE DANGEROUS CONDITION SAFER DOES NOT EQUATE WITH LAUNCHING AN INSTRUMENT OF HARM (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined that one defendant in this elevator accident case, Cooper Square, did not demonstrate that it did not displace the building owner’s duty to keep the premises safe, and another defendant, PS Marcato [elevator company] , sufficiently demonstrated it did not launch an instrument of harm.  The court noted […]

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DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO REQUEST A JURY CHARGE ON THE LESSER INCLUDED OFFENSE OF PETIT LARCENY; THE VALUE OF THE STOLEN CELL PHONES SHOULD NOT HAVE BEEN ADDED TOGETHER BECAUSE THERE WAS NO PROOF THE CELL PHONES WERE OWNED BY THE SAME OWNER (FIRST DEPT).

The First Department, reversing defendant’s conviction, determined: (1) defense counsel was ineffective for failing to request the jury be charged with the lesser included offense of petit larceny in this robbery case involving the theft of cell phones: and (2), the value of the cell phones should not have been added together because there was […]

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QUESTION OF FACT WHETHER DEFENDANT NEUROLOGIST AND DEFENDANT CARDIOLOGIST WERE JOINTLY DIAGNOSING AND TREATING PLAINTIFF FOR HER STROKE; QUESTION OF FACT WHETHER THE NEUROLOGIST SHOULD HAVE ENSURED THAT A TEST ORDERED BY THE NEUROLOGIST, BUT TO BE PERFORMED BY THE CARDIOLOGIST, WAS DONE WITHIN 48 HOURS (FIRST DEPT),

The First Department, reversing Supreme Court, determined the defendant doctors’ motions for summary judgment in this medical malpractice case should not have been granted. There was a question of fact whether defendants were jointly diagnosing and treating the plaintiff. Defendant neurologist ordered a trans-esophageal electrocardiogram (TEE), to be done by a cardiologist, to determine the […]

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TESTIMONY OF A DEFENSE WITNESS WHO IDENTIFIED PLAINTIFF AS THE PERSON FLEEING THE SCENE OF A CRIME SHOULD NOT HAVE BEEN PRECLUDED IN THIS FALSE ARREST AND MALICIOUS PROSECUTION ACTION; THE JURY WAS NOT INSTRUCTED ON THE CRITERIA FOR A TERRY STOP; PLAINTIFF’S JUDGMENT VACATED AND NEW TRIAL ORDERED (FIRST DEPT).

The First Department, vacating the plaintiff’s judgment and ordering a new trial in this false arrest and malicious prosecution action, determined that the testimony of the defense witness who identified plaintiff as fleeing the scene of a crime should not have been precluded. The name and address of the witness had been provided to plaintiff […]

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DEFENDANT DOCTOR WAS PROPERLY ALLOWED TO TESTIFY ABOUT HIS USUAL PRACTICE OR HABIT IN PERFORMING KNEE REPLACEMENT SURGERY (SECOND DEPT).

The Second Department, affirming the defense verdict in this medical malpractice action, determined that defendant doctor (Baez) was properly allowed to testify about his usual practice or “habit” in performing a knee replacement: Baez’s habit testimony as to how he performs knee replacement surgeries, including that the methodology for measuring and dissecting 10 millimeters of […]

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THE DOCTRINE OF THE LAW OF THE CASE PRECLUDED CONSIDERATION OF WHETHER THE BANK COMPLIED WITH THE NOTICE PROVISIONS OF RPAPL 1304; THE ISSUE HAD BEEN DETERMINED IN THE BANK’S FAVOR AT THE SUMMARY JUDGMENT STAGE AND SHOULD NOT HAVE BEEN RECONSIDERED, SUA SPONTE, WHEN THE BANK MOVED FOR A JUDGMENT OF FORECLOSURE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the doctrine of the law of the case precluded the court from sua sponte, considering whether the notice requirements of Real Property Actions and Proceedings Law (RPAPL) 1304 were met by the bank in this foreclosure action. The issue was determined in the bank’s favor in the initial […]

SUPREME COURT SHOULD NOT HAVE DETERMINED THE MERITS OF THIS ACTION FOR A DECLARATORY JUDGMENT ON A MOTION TO DISMISS FOR FAILURE TO STATE A CAUSE OF ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the motion to dismiss a declaratory judgment action should have been denied. Supreme Court had issued a declaratory judgment in favor of the moving party (the county). This is a class action contending that the imposition of a driver responsibility fee on red-light camera violations is illegal: The […]

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ALTHOUGH DEFENDANT MAY HAVE STOPPED AT A STOP SIGN, HE NEVERTHELESS FAILED TO YIELD; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS INTERSECTION TRAFFIC ACCIDENT CASE SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment in this intersection traffic accident case. The fact that defendant (Maicol) allegedly stopped at a stop sign before pulling out into plaintiff’s path did not raise a question of fact: … [T]he plaintiff established her prima facie entitlement to judgment as a […]

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