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Entries by Bruce Freeman

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DEFENDANT’S AFFIRMATIVE DEFENSES SHOULD HAVE BEEN CONSIDERED IN ITS MOTION FOR SUMMARY JUDGMENT; PLAINTIFF’S ACTION AGAINST DEFENDANT BASED UPON HER DISMISSAL FROM A NURSING PROGRAM SHOULD HAVE BEEN BROUGHT IN AN ARTICLE 78 PROCEEDING AND WAS THEREFORE TIME-BARRED (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the court should have considered defendant’s affirmative defenses, including the statute of limitations defense, in determining defendant’s summary judgment motion. Plaintiff brought fraud, breach of contract and prima facie tort causes of action against defendant. Plaintiff was enrolled in defendant’s licensed practical nurse (LPN) program and was dismissed by […]

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OUT-OF-POSSESSION LANDLORD NOT LIABLE FOR A SLIP AND FALL ON ICE ON THE RENTAL PROPERTY, SUPREME COURT REVERSED (THIRD DEPT).

The Third Department, reversing Supreme Court, determined defendant out-of-possession landlord did not have a contractual duty to remove ice and snow and did not have actual or constructive notice of the icy condition on the rental property in this slip and fall case: “As a general rule, an out-of-possession landlord is not responsible for dangerous […]

AMENDMENT OF THE WORKERS’ COMPENSATION LAW TO REMOVE THE REQUIREMENT THAT A CLAIMANT DEMONSTRATE ATTACHMENT TO THE LABOR MARKET TO BE ENTITLED TO PERMANENT PARTIAL DISABILITY PAYMENTS DID NOT APPLY RETROACTIVELY TO CLAIMANT (SECOND DEPT).

The Third Department determined claimant was deemed to have involuntarily retired and no longer attached to the labor market in August 2015, well before the amendment of the Workers’ Compensation Law which removed the requirement that a claimant demonstrate attachment to the labor market to be entitled to permanent partial disability payments. The amendment did […]

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A SMALL AMOUNT OF COCAINE IN PLAIN VIEW IN DEFENDANT DRIVER’S POCKET DID NOT PROVIDE PROBABLE CAUSE TO SEARCH THE TRUNK OF DEFENDANT’S CAR AFTER A TRAFFIC STOP (SECOND DEPT).

he Second Department, on an appeal by the People, determined finding a small amount of cocaine on defendant driver’s person did not provide probable cause to believe drugs would be in the trunk. Therefore the weapon and drugs found in the trunk, as well as defendant’s statements about searching the trunk, were properly suppressed: … […]

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MOTION TO SET ASIDE THE DAMAGES VERDICT IN THIS TRAFFIC ACCIDENT CASE AS INADEQUATE SHOULD HAVE BEEN GRANTED; NEW TRIAL ORDERED UNLESS DEFENDANT STIPULATES TO INCREASED AWARDS FOR PAST AND FUTURE PAIN AND SUFFERING (SECOND DEPT). ​

The Second Department determined the motion to set aside the damages verdict as inadequate in this traffic accident case should have been granted. The Second Department ordered a new trial unless the defendant stipulates to an increased award of damages for past pain and suffering from $25,000 to $150,000 and for future pain and suffering from $0 […]

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THE JURY NOTES SHOULD HAVE BEEN READ VERBATIM TO COUNSEL, NOT PARAPHRASED BY THE JUDGE; THIS MODE OF PROCEEDINGS ERROR REQUIRES REVERSAL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the jury notes should have been read verbatim to counsel, not paraphrased: .. [T]he jury submitted a note stating, “We would like to see the difference between first and second degree murder. (Powerpoint).” The Supreme Court informed counsel, the defendant, and the codefendant that the jurors “want to […]

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JUDGES IN THE 2ND DEPARTMENT HAVE THE DISCRETION TO ORDER UNIFIED PERSONAL INJURY TRIALS WHERE THE ISSUES OF LIABILITY AND THE INJURIES ARE INTERTWINED AS THEY WERE IN THIS CONSTRUCTION ACCIDENT CASE; DEFENSE VERDICT SET ASIDE AND A NEW UNIFIED TRIAL ORDERED (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Scheinkman, setting aside the defense verdict on liability and ordering a new trial, determined that the trial judge had the discretion to order (and should have ordered) a unified trial (both liability and damages) in this Labor Law 240 (1), 241 (6), 200 and common law […]

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PRODUCTION OF THE ORIGINAL NOTE AND ENDORSEMENTS WAS “MATERIAL AND NECESSARY” TO THE DETERMINATION WHETHER THE BANK HAS STANDING TO BRING THE FORECLOSURE ACTION, DEFENDANT’S MOTION TO COMPEL DISCOVERY SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion pursuant to CPLR 3124 to compel the bank in this foreclosure action to produce the original note and endorsements should have been granted. Defendant had challenged the bank’s standing to bring the foreclosure action and the production of the original note and endorsements was “material and […]

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FAMILY COURT FAILED TO COMPLY WITH THE FAMILY COURT ACT AND PENAL LAW REQUIREMENTS IN THIS JUVENILE DELINQUENCY PROCEEDING, PETITION DISMISSED (SECOND DEPT).

The Second Department, reversing Family Court in this juvenile delinquency proceeding, determined the court failed to comply with the notice provisions and the plea allocution requirements of the Family Court Act, as well as the proof requirements of the Penal Law. It was alleged the appellant either recklessly or intentionally broke a window: Although the Family […]

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