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Entries by Bruce Freeman

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SUSPENSION OF COLLEGE STUDENT FOR THREE YEARS BASED UPON A FINDING THE STUDENT WAS RESPONSIBLE FOR SEXUAL VIOLENCE AS DEFINED IN THE STUDENT CONDUCT MANUAL UPHELD (THIRD DEPT).

The Third Department upheld the college’s finding that petitioner was responsible for sexual violence within meaning of the provisions of the Student Conduct Manual and was properly suspended from the State University of New York (SUNY) at Plattsburgh for three years. The charges were based upon the female student’s inability to consent or her lack of […]

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QUESTIONS OF FACT WHETHER NEGLIGENT SUPERVISION OF PLAINTIFF KINDERGARTEN STUDENT IN GYM CLASS WAS THE PROXIMATE CAUSE OF HER INJURY (THIRD DEPT).

The Third Department determined there were questions of fact whether the school was negligent in supervision plaintiff kindergarten student in gym class. Infant plaintiff was instructed to jump but her feet did not leave the ground and she fell forward on her arm. Infant plaintiff had an individualized accommodation plan (504 plan) of which the […]

PATIENT ADVOCATES WHO ACCOMPANY THE CLIENTS OF PERSONAL INJURY LAW FIRMS TO INDEPENDENT MEDICAL EXAMINATIONS ARE EMPLOYEES ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT).

The Third Department determined claimants were employees of IME, which paid claimants (patient advocates) to accompany clients of personal injury law firms during independent medical examinations. Therefore claimants were entitled to unemployment insurance benefits: IME advertised for patient advocates, who were required to submit resumÉs and to be interviewed. IME then imposed very specific requirements governing […]

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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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