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Entries by Bruce Freeman

DEFENDANT DID NOT COME FORWARD WITH A NON-NEGLIGENT EXPLANATION FOR STRIKING THE REAR OF PLAINTFF’S STOPPED CAR; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment in this rear-end collision case: … [T]he plaintiff’s vehicle struck the rear of the vehicle traveling directly in front of it when that vehicle made a sudden stop in response to the traffic conditions ahead. A few seconds later, the plaintiff’s vehicle […]

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THREE AND A HALF MONTH DELAY IN NOTIFYING THE INSURER OF THE LAWSUIT VIOLATED THE POLICY PROVISION REQUIRING NOTICE AS SOON AS PRACTICABLE; THE DISCLAIMER MAILED 29 DAYS AFTER NOTICE OF THE SUIT WAS RECEIVED BY THE INSURER WAS TIMELY AND PRECLUDED SUIT AGAINST THE INSURER (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant did not timely notify the insurer of the action and the insurer’s disclaimer on that ground was timely. Plaintiff alleged she was sexually assaulted by defendant Braun, an employee of defendant APS. Braun received the summons and complaint on October 31, 2008. Braun was deemed an agent […]

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DEFENDANT WAS NOT INFORMED THAT THE SENTENCE WOULD INCLUDE POSTRELEASE SUPERVISION AT THE TIME OF THE PLEA, ALTHOUGH HE WAS INFORMED THE SENTENCE PROMISE WAS CONDITIONED UPON NO FURTHER ARRESTS; DEFENDANT WAS ARRESTED TWICE BEFORE SENTENCING AND AN ENHANCED SENTENCE, INCLUDING POSTRELEASE SUPERVISION, WAS IMPOSED; PLEA WAS NOT VOLUNTARY; ERROR APPEALABLE DESPITE LACK OF PRESERVATION (SECOND DEPT).

The Second Department, vacating defendant’s guilty plea, determined that the plea was not voluntary because defendant was not informed that the sentence would include a period of postrelease supervision. At the time of the plea, defendant was told the 1 – 3 1/2 year sentence promise was conditioned upon no additional arrests. Defendant was arrested […]

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BURGLARY AS A SEXUALLY MOTIVATED OFFENSE FIRST DEGREE IS NOT A REGISTERABLE OFFENSE UNDER SORA; A SEX OFFENDER CLASSIFICATION IS APPEALABLE WHEN THE ERROR IS NOT PRESERVED (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice LaSalle, determined that burglary as a sexually motivated felony first degree (Penal Law 140.30[2]) is not a registerable offense under SORA, the result of an apparently unintended omission from the Correction Law. Defendant had attempted to rape the victim after breaking into her house. The court […]

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BANKRUPTCY TRUSTEE PROPERLY SUBSTITUTED FOR PLAINTIFF IN A PERSONAL INJURY ACTION, DESPITE PLAINTIFF’S FAILURE TO LIST THE ACTION AS AN ASSET IN HIS VOLUNTARY PETITION FOR CHAPTER 7 BANKRUPTCY (SECOND DEPT).

The Second Department determined the bankruptcy trustee was properly substituted, by the Bankruptcy Court, for plaintiff in a personal injury action, despite the fact that the action had not been listed as an asset when plaintiff filed a voluntary petition for chapter 7 bankruptcy: The rule that a substitution cannot be made is grounded in […]

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PLAINTIFF COLLEGE SOCCER PLAYER ASSUMED THE RISK OF INJURY FROM BEING STRUCK IN THE HEAD BY A SOCCER BALL, SUFFERING A CONCUSSION, AND THEREAFTER BEING LEFT IN THE GAME, ALLEGEDLY EXACERBATING THE INJURY (SECOND DEPT).

The Second Department determined that plaintiff, a college soccer player, assumed the risk of injury caused by being struck in the head by a soccer ball: As to the Molloy College defendants and the referee defendants, the plaintiff alleged that they were negligent in, among other things, not removing him from the match after he […]

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CENTURY-OLD ELEVATOR MUST BE REPLACED, DESPITE THE COST AND DESPITE THE APPARENT FACT THAT ONLY ONE OF FOUR TENANTS USED THE ELEVATOR (FIRST DEPT).

The First Department, reversing Supreme Court, in a full-fledged opinion by Justice Tom, determined the ruling by the NYS Department of Housing and Community Renewal (DHCR) ruling requiring the landlord to provide elevator service was not irrational and must be upheld. The century-old elevator needed replacement at a cost of $150,000. Apparently the building has four […]

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CLAIMANT COULD NOT SEEK COMPENSATION FOR PERIODIC FLOODING OF HIS LOT UNDER THE EMINENT DOMAIN PROCEDURE LAW; THERE WAS NO DE JURE TAKING BY THE CITY, AND THE CRITERIA FOR INVERSE CONDEMNATION WERE NOT MET (FIRST DEPT).

The First Department, reversing Supreme Court, determined claimant’s action for damages based upon the periodic flooding claimant’s lot, over which the city had an easement, should have been dismissed. Claimant alleged the city had appropriated the easement by causing flooding: … Claimant filed a notice of claim pursuant to Eminent Domain Procedure Law (EDPL) § […]

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DISCOVERY OF DEFENDANT’S SOURCE CODE, A TRADE SECRET, SHOULD HAVE BEEN ORDERED FOR “ATTORNEYS AND EXPERT EYES ONLY” (FIRST DEPT).

The First Department, reversing Supreme Court, determined the discovery-production of defendant’s source code, a trade secret, should have been for “attorneys and expert eyes only.” The production of defendants’ source code, which is a trade secret … , should have been ordered to be produced for “attorneys and expert eyes only” … . Plaintiffs’ assertion […]

CHILD SUPPORT ARREARS PROPERLY AWARDED TO MOTHER, BUT THE AMOUNT SHOULD HAVE BEEN CALCULATED THROUGH THE HEARING DATE (FIRST DEPT).

The First Department noted that, although child support arrears were properly awarded to petitioner (mother), the amount of the arrears should have been calculated through the date of the hearing: By submitting evidence that respondent [father] was delinquent in his support payments … , petitioner established prima facie that respondent willfully violated his child support […]

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