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Entries by Bruce Freeman

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CONFLICTING EVIDENCE RAISED QUESTIONS OF FACT IN THIS “NEGLIGENT USE OF EXCESSIVE FORCE,” “FALSE ARREST,” AND “UNLAWFUL IMPRISONMENT” ACTION STEMMING FROM THE STREET STOP, SHOOTING AND ARREST OF THE PLAINTIFF; THE DEFENDANT TRANSIT AUTHORITY’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined conflicting evidence precluded summary judgment in this civil action stemming from the street stop and arrest of the plaintiff. Although plaintiff pled guilty, which usually forecloses any argument that the arrest was not supported by probable cause, here evidence submitted the defendant transit authority raised a question of […]

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ALTHOUGH THE DEFENDANT’S ATTORNEY AFFIDAVIT DID NOT LAY A PROPER FOUNDATION FOR THE ADMISSIBILITY OF THE ATTACHED DOCUMENTS, THE DOCUMENTS SHOULD NOT HAVE BEEN DEEMED INADMISSIBLE BECAUSE THE PLAINTIFF DID NOT OBJECT TO THEM AND RELIED ON THEM IN OPPOSITION TO DEFENDANT’S MOTION (FIRST DEPT).

The First Department, reversing Supreme Court in this breach of contract action, determined that, although the defendant’s attorney-affidavit did not lay a proper foundation for the admissibility of the attached documents, the documents were admissible because plaintiff never objected to the admissibility of the documents and relied on those documents in opposing defendant’s motion: Supreme […]

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THE MAJORITY CONCLUDED THE COURT SHOULD USE ITS AUTHORITY TO DISMISS THE JUVENILE DELINQUENCY PETITION IN THE INTEREST OF JUSTICE, AN EXTRAORDINARY REMEDY WHICH SHOULD BE EMPLOYED SPARINGLY, FACTORS EXPLAINED (THIRD DEPT).

The Third Department, over a concurring decision and an extensive dissent, determined the juvenile delinquency petition should be dismissed in the interest of justice. The concurrence argued the dismissal should be based upon ineffective assistance of counsel. The dissent argued this difficult situation was properly handled: Although we are mindful that “[d]ismissal in the furtherance […]

THE INDUSTRIAL CODE PROVISIONS RELIED UPON BY PLAINTIFF DO NOT APPLY TO A SLIPPERY SUBSTANCE ON A LADDER, REQUIRING THE DISMISSAL OF A LABOR LAW 241(6) CAUSE OF ACTION (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined certain provisions of the Industrial Code did not apply to a slippery substance on a ladder, requiring the dismissal of a Labor Law 241(6) cause of action: The court should have dismissed the Labor Law § 241 (6) claim … on the basis that the Industrial Code […]

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THE USE OF POST-DISCHARGE AFFIDAVITS FROM TWO JURORS, CLAIMING JUROR CONFUSION, AS THE BASIS FOR THE MOTION TO SET ASIDE THE VERDICT WAS IMPROPER BECAUSE THERE WAS NO SUPPORT FOR THE CLAIMS IN THE RECORD; THE MOTION SHOULD HAVE BEEN DENIED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the motion to set aside the jury verdict should not have been granted. The motion was based upon affidavits from two jurors which were drafted after the jury was discharged. There was no support in the record for the claims made in the affidavits: “It has long been […]

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PLAINTIFF SHOULD NOT HAVE BEEN GRANTED MORE TIME TO SERVE DEFENDANT UNDER EITHER THE “GOOD CAUSE” OR “INTEREST OF JUSTICE” CRITERIA (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff should not have been granted more time to serve the summons and complaint under either the “good cause” or “interest of justice” criteria: Pursuant to CPLR 306-b, a plaintiff is required to serve the summons and complaint within 120 days after commencement of the action. If service […]

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PLAINTIFF FELL AT HER NURSING HOME AND EMERGENCY PERSONNEL FOUND HER UNATTENDED ON THE FLOOR WITH NO IDENTIFICATION BAND; DEFENDANT’S EXPERT, A CARDIAC CRITICAL CARE PHYSICIAN, DID NOT DEMONSTRATE FAMILIARITY WITH NURSING HOME CARE AND DID NOT ADDRESS ALL THE ALLEGATIONS IN THE PLEADINGS; SUMMARY JUDGMENT SHOULD NOT HAVE BEEN AWARDED TO DEFENDANT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion for summary judgment in this medical malpractice/Public Health Law 2801-d action should not have been granted. The defendant relied on the expert opinion of a physician who did not demonstrate familiarity with nursing home care and did not address the allegations that plaintiff’s decedent was left […]

THE FAILURE TO PROVIDE PLAINTIFF WITH EYE-PROTECTION EQUIPMENT WARRANTED SUMMARY JUDGMENT ON THE LABOR LAW 241(6) CAUSE OF ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment on the Labor Law 241(6) cause of action should have been granted. Plaintiff suffered an injury to his eye when a discharge hose disconnected from a sandblaster. Plaintiff alleged the violation of two Industrial Code provisions requiring that he be provided with protective […]

IN THIS ALL-TERRAIN-VEHICLE (ATV) ACCIDENT CASE, THERE IS A QUESTION OF FACT WHETHER THE DRIVER UNREASONABLY INCREASED THE RISK TO PLAINTIFF-PASSENGER THEREBY PRECLUDING THE APPLICATION OF THE ASSUMPTION-OF-THE-RISK DOCTRINE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined there was a question of fact whether assumption of the risk doctrine precluded plaintiff from recovery in this all-terrain vehicle (ATV) accident case. There was a question whether the driver unreasonably increased the risk to plaintiff-passenger: “Pursuant to the doctrine of primary assumption of risk, a voluntary participant […]

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THE DISMISSAL OF A FORELCOSURE ACTION ON THE GROUND THE BANK FAILED TO COMPLY WITH THE NOTICE OF DEFAULT PROVISIONS IN RPAPL 1304 IS NOT AN EXPRESS JUDICIAL DETERMINATION THAT THE ACTION DID NOT VALIDLY ACCELERATE THE DEBT; THEREFORE, HERE, THE 2013 FORECLOSURE ACTION IS TIME-BARRED PURSUANT TO THE FORECLOSURE ABUSE PREVENTION ACT (FAPA) (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the foreclosure action was time-barred. The bank’s argument that the the foreclosure complaint filed in 2013 did not accelerate the debt was rejected. The 2013 action was dismissed in 2018 because the bank did not comply with the notice of default requirement in Real Property Actions and Proceedings […]

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