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Entries by Bruce Freeman

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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 […]

THE NURSING HOME SUED BY DECEDENT’S DAUGHTER AS EXECUTOR OF HER MOTHER’S ESTATE BROUGHT A THIRD-PARTY ACTION AGAINST THE DAUGHTER ALLEGING HER MOTHER’S INJURIES DID NOT RESULT FROM A FALL AT THE NURSING HOME BUT RATHER FROM THE DAUGHTER’S NEGLIGENT FAILURE TO FOLLOW THE NURSING HOME’S INSTRUCTIONS FOR THE HOME CARE AND SUPERVISION OF HER MOTHER; UNDER THE FACTS OF THIS CASE THERE EXISTED NO DUTY OF CARE UNDER WHICH THE DAUGHTER COULD BE HELD LIABLE FOR CONTRIBUTION BY THE NURSING HOME (SECOND DEPT).

The Second Department, in a comprehensive opinion by Justice Hinds-Radix, reversing Supreme Court, determined plaintiff (Santoro), the daughter of the decedent and the executor of her mother’s estate, did not owe a duty of care to her infirm mother such that Santoro could be sued for contribution by the nursing home her mother’s estate was […]

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PLAINTIFFS (CUPID AND ROBINSON) DEMONSTRATED DEFENDANT DRIVER WAS NEGLIGENT AND HIS NEGLIGENCE CAUSED THE TRAFFIC ACCIDENT; DEFENDANTS’ ALLEGATION THAT PLAINTIFF CUPID, NOT PLAINTIFF ROBINSON, WAS DRIVING THE CAR DID NOT CREATE A RELEVANT QUESTION OF FACT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiffs’ motion for summary judgment in this traffic accident case should have been granted. The evidence demonstrated defendant driver (Paul) went through a red light and failed to see what he should have seen. The defendants’ argument that the plaintiffs claimed that Cupid was driving when in fact […]

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PROSECUTOR’S UNTRUE CLAIM, MADE IN SUMMATION, THAT DEFENDANT’S DNA WAS FOUND ON THE WEAPON USED IN THE SHOOTING REQUIRED REVERSAL (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined that the prosecutor’s untrue claim, made in summation and immediately objected to, that defendant’s DNA was found on the weapon used to shoot the victim, required a new trial: … [T]he prosecutor’s comments during summation that the defendant’s DNA was found on the weapon used to shoot the […]

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MALPRACTICE ACTION AGAINST A DOCTOR PROPERLY SEVERED FROM A NEGLIGENT HIRING AND RETENTION ACTION AGAINST THE DOCTOR’S EMPLOYER (SECOND DEPT).

The Second Department determined the action against a doctor (Wishner) for medical malpractice was properly severed from an action against the doctor’s employer (HMG) for negligent training, supervision, hiring and retention. Evidence the doctor had negligently treated another patient would not be admissible in the malpractice action but would be admissible in the action against […]

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OUT-OF-POSSESSION LANDLORD ONLY RESPONSIBLE FOR STRUCTURAL REPAIRS; THE ONE-STEP RISER WHICH CAUSED PLAINTIFF’S SLIP AND FALL WAS NOT A STRUCTURAL ELEMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the out-of-possession landlord (Steph-Leigh) was not responsible for the repair of a one-step riser inside a warehouse, which allegedly caused plaintiff’s slip and fall: “An out-of-possession landlord is not liable for injuries that occur on its premises unless the landlord has retained control over the premises and has […]

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