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Entries by Bruce Freeman

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THE DEPOSIT OF FULL PAYMENT OF JUDGMENTS IN A COURT MONITORED ESCROW ACCOUNT DID NOT STOP THE ACCRUAL OF POST-JUDGMENT INTEREST (FIRST DEPT).

The First Department determined the deposit of full payment of judgments placed in a court monitored escrow account were subject to the accrual of post-judgment interest: Defendants’ deposit of full payment on the judgments entered against it to a court monitored escrow account (the Monitorship Account) was not unconditional, such that it did not stop […]

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PLAINTIFF WAIVED THE PHYSICIAN-PATIENT PRIVILEGE BY PLACING THE CONDITION OF HER KNEES INTO CONTROVERSY IN THIS ACCIDENT CASE, APPELLATE DIVISION REVERSED (CT APP). ​

The Court of Appeals, reversing the Appellate Division, determined plaintiff had placed the condition of her knees into controversy in this accident case and defendants were therefore entitled to discovery re: prior treatment of her knees. The facts were not discussed: Plaintiff affirmatively placed the condition of her knees into controversy through allegations that the […]

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DEFENDANT CHARGED WITH AN A FELONY AND FACING A POTENTIAL LIFE SENTENCE CANNOT WAIVE INDICTMENT AND PLEAD TO A SUPERIOR COURT INFORMATION; JURISDICTIONAL ISSUE PROPERLY CONSIDERED ON APPEAL DESPITE GUILTY PLEA AND FAILURE TO RAISE THE ISSUE BELOW (CT APP).

The Court of Appeals, reversing defendant’s conviction by guilty plea, determined that the NYS Constitution and Criminal Procedure Law 195.10[1] prohibited defendant’s waiver of indictment because defendant was charged with an A felony with a potential life sentence. The defendant was charged with second degree murder, waived indictment and pled to a superior court information […]

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SUPREME COURT PROPERLY VALIDATED 25 SIGNATURES ON THE DESIGNATING PETITION WHICH HAD BEEN INVALIDATED BY THE BOARD OF ELECTIONS, THEREBY ALLOWING THE DEMOCRATIC CANDIDATE FOR COUNTY EXECUTIVE TO RUN IN THE NOVEMBER ELECTIONS (FOURTH DEPT).

The Fourth Department determined Supreme Court properly validated signatures which had been declared invalid by the Oneida County Board of Elections, allowing the Democratic candidate for Oneida County Executive to run in the upcoming election: The designating petition had been invalidated by respondent Board of Elections of County of Oneida (Board), which determined in response […]

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PROPOSED 2019 ELECTION REFERENDUM REGARDING PUBLIC EDUCATION OFFICIALS IN THE CITY OF ROCHESTER IS IMPERMISSIBLY ADVISORY AND WAS PROPERLY DECLARED VOID (FOURTH DEPT).

The Fourth Department determined the proposed 2019 referendum on amendments to City of Rochester Local Laws regarding the Board of Education, Commissioners and the salaries of School Board Members was impermissibly advisory: Any local law that “[a]bolishes an elective office” or “reduces the salary of an elective officer during his [or her] term of office” […]

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ALTHOUGH THE EASEMENT WAS NOT RECORDED IN PLAINTIFF’S DIRECT CHAIN OF TITLE, IT WAS INDEXED UNDER A BLOCK AND LOT NUMBER SYSTEM, THEREFORE PLAINTIFF HAD CONSTRUCTIVE NOTICE OF THE EASEMENT AND WAS NOT A BONA FIDE PURCHASER (FIRST DEPT). ​

The First Department, in a detailed opinion by Justice Friedman, determined a reasonable title search would have turned up an easement on the subject property. Therefore, plaintiff was not a bona fide purchaser of the empty lot (57 Crosby). The interesting opinion is too detailed to fairly summarize here. The following excerpt provides the flavor […]

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THE INSURED DID NOT SHOW UP FOR THE SCHEDULED INDEPENDENT MEDICAL EXAMS IN THIS NO-FAULT POLICY CASE, ARBITRATOR’S AWARD IRRATIONALLY IGNORED THE CONTROLLING LAW (FIRST DEPT).

The First Department, reversing the arbitrator, granted the insurer’s petition to vacate the arbitration award in this no-fault policy case: The master arbitrator’s award was arbitrary because it irrationally ignored the controlling law that the no-fault policy issued by petitioner was void ab initio due to respondent’s assignor’s failure to attend duly scheduled independent medical […]

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PLAINTIFF DID NOT DEMONSTRATE DEFENDANTS’ JANITORIAL SCHEDULE WAS MANIFESTLY UNREASONABLE IN THIS SLIP AND FALL CASE, WHICH PRECLUDES DEFENDANTS’ LIABILITY; PLAINTIFF’S TESTIMONY DEMONSTRATED DEFENDANTS DID NOT HAVE ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF THE ALLEGED WET CONDITION; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendants’ motion for summary judgment should have been granted in this slip and fall case. Defendants’ presented evidence of the janitorial schedule for a particular day which was deemed sufficient to preclude liability because plaintiff did not demonstrate the schedule was manifestly unreasonable.  And plaintiff’s testimony the defendants did […]

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THERE ARE QUESTIONS OF FACT WHETHER DEFENDANTS WERE NOTIFIED THAT THE ELEVATOR DOORS CLOSED TOO FAST AND WHETHER REPAIRS TO THE DOOR COULD BE RELATED TO THE CLOSING VELOCITY; PLAINTIFF ALLEGED HIS THUMB WAS CAUGHT IN THE CLOSING DOOR; DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined summary judgment should not have been granted to the defendant’s in this elevator accident case. Plaintiff alleged the elevator door closed too fast and his thumb was caught in the closing door. Plaintiff alleged he had complained to the building superintendent, a building maintenance employee and the management […]

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BANK NOT LIABLE FOR PAYMENT RE: FRAUDULENT CHECKS SIGNED BY PLAINTIFF BUT ALTERED BY PLAINTIFF’S BOOKKEEPER TO PAY OFF HER CREDIT CARD BILLS (FIRST DEPT).

The First Department determined defendant bank (Citibank) and Citi Credit were not liable for cashing checks which were signed by plaintiff but which were altered by plaintiff’s bookkeeper to pay off her credit card bills. Plaintiff was notified of the fraud by Citibank: Citibank’s actual knowledge of the fraud in February 2016 is, at this […]

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