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Entries by Bruce Freeman

PLAINTIFF’S INJURIES WERE NOT CAUSED BY A DEFECT IN THE SCAFFOLD OR A FAILURE TO PROVIDE AN ADEQUATE SAFETY DEVICE, LABOR LAW 200, 240 (1) AND 241 (6) CAUSES OF ACTION PROPERLY DISMISSED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Tom, over an extensive two-justice dissent, determined that plaintiff’s Labor Law 200, 240 (1) and 241 (6) causes of action were properly dismissed. Plaintiff was injured attempting to enter a building through a window from a scaffold, a prohibited method of entry. There was evidence plaintiff […]

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DEFENDANT DID NOT DEMONSTRATE WHEN THE STAIRWELL WAS LAST INSPECTED OR CLEANED IN THIS SLIP AND FALL CASE, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant’s motion for summary judgment should not have been granted in this slip and fall case. Plaintiff alleged a discarded metrocard was the cause of her slip and fall on a train station stairwell. The defendant did not demonstrate when the stairwell was last inspected or cleaned: Defendant […]

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THERE WERE NO GROUNDS TO DISTURB THE FACTUAL FINDINGS MADE BY THE JUDGE IN THIS BENCH TRIAL OF A FORECLOSURE ACTION, TWO DISSENTERS ARGUED THE FINDINGS WERE AGAINST THE WEIGHT OF THE EVIDENCE (FIRST DEPT).

The First Department, over a two-justice dissent, determined that the evidence at the bench trial in this foreclosure proceeding supported the judge’s conclusion that plaintiff bank was not the cause of defendant’s inability to obtain financing to payoff the mortgage pursuant to a settlement agreement. The dissenters argued the trial judge’s findings were against the weight […]

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NO PRIVATE RIGHT OF ACTION FOR A DEVELOPMENTALLY DISABLED CHILD HOUSED FOR MORE THAN FIVE WEEKS IN A HOSPITAL EMERGENCY ROOM BECAUSE NO APPROPRIATE RESIDENTIAL FACILITY WAS AVAILABLE (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Garry, considering the appeal under an exception to the mootness doctrine, determined a 16-year-old developmentally disabled child (Olivia) did not have a private right of action against Champlain Valley Physicians Hospital (CVPH), the Office for People with Developmental Disabilities (OPWDD) or the Department of Health (DOH) for housing her […]

DRIVER OF MIDDLE VEHICLE IN THIS THREE-CAR REAR-END TRAFFIC ACCIDENT CASE ENTITLED TO SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the middle driver, Budziak, in this three-car rear-end collision case was entitled to summary judgment: “A rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the operator of the rear vehicle, requiring that operator to come forward with […]

QUESTION OF FACT WHETHER THE BUS DRIVER RESPONDED REASONABLY UPON HEARING THE SIREN OF A FIRE TRUCK APPROACHING AN INTERSECTION; PLAINTIFF, A PASSENGER, WAS INJURED WHEN THE BUS DRIVER SLAMMED ON THE BRAKES (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined there was a question of fact whether the bus driver reacted properly to an emergency. Plaintiff, a passenger, was injured when the bus suddenly braked to avoid a fire truck entering an intersection. There was a question whether the driver slowed down upon hearing the siren: The evidence […]

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WHERE ARBITRABLE AND NONARBITRABLE CLAIMS ARE INTERTWINED, COURT PROCEEDINGS SHOULD BE STAYED PENDING THE ARBITRATION DETERMINATION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that, under the terms of the employment contract, even if the matter involves both arbitrable and nonarbitrable claims, any court procedures should be stayed until the determination of the arbitrable issues: Paragraph 4(b) of the consulting agreement, which addresses the defendant’s right to terminate the plaintiff’s retention for […]

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THE TRANSCRIPT OF THE SETTLEMENT PROCEEDING UTTERLY REFUTED PLAINTIFF’S CLAIM TO HAVE BEEN COERCED INTO SETTLING, THE LEGAL MALPRACTICE COMPLAINT SHOULD HAVE BEEN DISMISSED (SECOND DEPT),

The Second Department, reversing Supreme Court, determined that defendants-attorneys’ motion to dismiss the complaint in this legal malpractice action should have been granted because the transcript of the settlement proceeding utterly refuted the allegations in the complaint. Plaintiff alleged it was coerced into settling the action: A motion to dismiss a complaint pursuant to CPLR […]

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ALTHOUGH THE BETTER PRACTICE IS TO SUBMIT A SEPARATE AFFIRMATION, DEFENSE COUNSEL’S PRIMARY AFFIRMATION IN SUPPORT OF THE MOTION TO COMPEL PLAINTIFF TO SUBMIT TO A VOCATIONAL EXAM DESCRIBED THE GOOD FAITH EFFORTS TO RESOLVE THE ISSUE, THE MOTION TO COMPEL WAS PROPERLY GRANTED (SECOND DEPT).

The Second Department determined Supreme Court was not required to deny defendants’ motion to compel plaintiff to submit to a vocational exam because defense counsel did not submit a separate affirmation demonstrating a good faith effort to resolve the dispute. The requirements of 22 NYCRR 202,7 (c) were met in the primary affirmation submitted is support […]

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DEFENDANTS’ CROSS-MOTION FOR SANCTIONS RELATING TO DISCLOSURE WAS NOT ACCOMPANIED BY DEFENSE COUNSEL’S AFFIRMATION DEMONSTRATING A GOOD FAITH EFFORT TO RESOLVE THE ISSUES ADDRESSED IN THE MOTION, THE CROSS-MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department determined defendants’ cross-motion for sanctions pursuant to CPLR 3126 relating to disclosure should not have been granted. The cross-motion was not accompanied by defense counsel’s affirmation demonstrating a good faith effort to resolve the issues addressed by the motion: Pursuant to 22 NYCRR 202.7(a) and (c), a motion relating to disclosure must […]

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