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Entries by Bruce Freeman

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BECAUSE THE RES IPSA LOQUITUR DOCTRINE IS DEPENDENT UPON CIRCUMSTANTIAL EVIDENCE FROM WHICH INFERENCES MUST BE DRAWN, SUMMARY JUDGMENT IS USUALLY NOT APPROPRIATE; HERE A GARAGE DOOR CLOSED OR FELL ON PLAINTIFF; PLAINTIFF’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the res ipsa loquitur doctrine was not a proper basis for granting plaintiff’s summary judgment motion. Plaintiff was injured when a garage door at defendant’s vehicle-repair shop closed on her as she left the customer waiting area. Plaintiff could have used an exterior door rather than the open […]

STANDING ON AN INVERTED BUCKET CONSTITUTED A “PHYSICALLY SIGNIFICANT” HEIGHT-DIFFERENTIAL FOR PURPOSES OF LIABILITY UNDER LABOR LAW 240(1); INJURY WHILE PREVENTING A FALL IS COVERED BY LABOR LAW 240(1) (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined there was a question of fact whether plaintiff’s injury, suffered as he tried to maintain his balance while standing on an inverted bucket, was covered by Labor Law 240(1), despite the fact that plaintiff did not actually fall: Plaintiff … testified at his deposition that he sustained […]

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THE LAWSUIT BROUGHT BY PLAINTIFF BENEFICIARY AGAINST DEFENDANT TRUSTEE DID NOT CHALLLENGE THE TRUST, BUT RATHER SOUGHT TO ENFORCE THE PROVISIONS OF THE TRUST; THEREFORE THE LAWSUIT DID NOT TRIGGER THE IN TERROREM CLAUSE (WHICH DISPOSSES A BENEFICIARY WHO SEEKS TO NULLIFY THE TRUST); THERE WAS A THREE-JUDGE DISSENT (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge Rivera, over a three-judge dissent, reversing (modifying) Supreme Court, determined the lawsuit brought by plaintiff beneficiary of the estate (Carlson) against the trustee (Colangelo) did not trigger the “in terrorem” clause in the will and the trust. Therefore the provisions of the will and the […]

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IN THIS CHILD VICTIMS ACT NEGLIGENT-SUPERVISON ACTION AGAINST THE COUNTY, THE PLAINTIFF DID NOT RAISE A QUESTION OF FACT ABOUT WHETHER THE COUNTY HAD NOTICE OF A SOCIAL SERVICES CASEWORKER’S SEXUAL ABUSE OR PROPENSITY FOR SEXUAL ABUSE OF CHILDREN (CT APP).

The Court of Appeals, affirming the dismissal of this Child Victims Act suit against the county, in a full-fledged opinion by Judge Wilson, over a comprehensive dissenting opinion, determined the plaintiff did not raise a question of fact about whether the county had actual or constructive notice that a Department of Social Services caseworker (Hoch) […]

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WHERE, AS HERE, PLAINTIFFS ALLEGE THE CONTESTED SALES TAX STATUTE IS “WHOLLY INAPPLICABLE” TO THEM, AND PLAINTIFFS SEEK A DECLARATORY JUDGMENT TO THAT EFFECT, THE “EXHAUSTION OF ADMINISTRATIVE REMEDIES” REQUIREMENT IS NOT RELEVANT (THRID DEPT). ​

The Third Department, reversing (modifying) Supreme Court, determined some of the plaintiffs had not failed to exhaust their administrative remedies in this action contesting the imposition of sales tax on the construction and demolition inspection services provided by plaintiffs. There is an exception to the “exhaustion of administrative remedies” requirement where, as here, plaintiffs claim […]

MARKETING INFORMATION PROVIDED TO INDIVIDUAL CLIENTS WHICH IS SUBSEQUENTLY INCLUDED IN REPORTS SOLD TO OTHERS IS SUBJECT TO SALES TAX (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Cannataro, over a comprehensive two-judge dissent, affirming the appellate division, determined the Tax Appeals Tribunal properly held that petitioner’s (Dynamic’s) information service was subject to sales tax: Dynamic markets products to help clients measure the effectiveness of their advertising campaigns. At issue here is one […]

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OVERRULING A 2006 OPINION, A PLAINTIFF IN A DOG-BITE ACTION CAN NOW SUE IN STRICT LIABILITY AND COMMON-LAW NEGLIGENCE (CT APP).

The Court of Appeals, reversing the appellate division in this dog-bite case, in a full-fledged opinion by Judge Halligan, reinstating the strict liability and common-law negligence causes of action, overruled the 2006 Court of Appeals case holding that there is no common-law liability for injury caused by a domestic animal: Plaintiff Rebecca Flanders, a postal […]

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ONLY THE COURT CHARGED WITH EMPANELING THE GRAND JURY CAN ORDER THE RELEASE OF THE GRAND JURY MINUTES; IN ORANGE COUNTY THE COURT CHARGED WITH EMPANELING GRAND JURIES IS COUNTY COURT; THEREFORE THE PETITON FOR A WRIT OF PROHIBITION PROHIBITING A SUPREME COURT JUSTICE FROM ORDERING THE RELEASE OF THE GRAND JURY MINUTES WAS GRANTED (SECOND DEPT).

The Second Department granted a petition for a writ of prohibition to prohibit a Supreme Court justice from ordering the release of grand jury minutes to the plaintiff in a civil action. Only the court charged with empaneling the grand jury, in this case County Court, can order release of the minutes: The orders … […]

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PLAINTIFF INSURER CAN SUE, AS A SUBROGEE, THE CLUB WHICH SERVED ALCOHOL TO ITS INSUREDS, WHO WERE VISIBLY INTOXICATED, PURSUANT TO THE DRAM SHOP ACT; THE INSUREDS WERE INJURED IN A SINGLE CAR ACCIDENT AND THE INSURER PAID OUT MORE THAN $500,000 (SECOND DEPT). ​

The Second Department, in a full-fledged opinion by Justice Love, affirming Supreme Court, determined that plaintiff insurance company, Drive Insurance, could stand in the shoes of its insureds (as a subrogee) and sue the defendant club, Atlantis, pursuant to the Dram Shop  Act. Plaintiff alleged defendant served alcohol to the visibly intoxicated insureds who were […]

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DEFENDANT IN THIS SLIP AND FALL CASE DID NOT PROVE WHEN THE AREA OF THE FALL WAS LAST INSPECTED OR CLEANED; THEREFORE DEFENDANT DID NOT DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF THE CONDITION AND WAS NOT ENTITLED TO SUMMARY JUDGMENT; PROOF OF GENERAL CLEANING PRACTICES IS NOT ENOUGH (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant in this slip and fall did not demonstrate a lack of constructive notice of the flower petals on the floor which caused plaintiff to slip and fall. Therefore defendant was not entitled to summary judgment. A lack of constructive notice can be demonstrated by proof the […]

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