Bruce Freeman – Page 731 – New York Appellate Digest

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Entries by Bruce Freeman

Defamation, Immunity, Social Services Law

DOCTOR’S REPORTING PLAINTIFFS’ CHILD’S INJURIES TO CHILD PROTECTIVE SERVICES IS PROTECTED BY THE QUALIFIED IMMUNITY PROVISION IN THE SOCIAL SERVICES LAW, PLAINTIFFS’ DEFAMATION ACTION SHOULD HAVE BEEN DISMISSED (THIRD DEPT).

The Third Department, reversing Supreme Court, determined defendant doctor’s (Bludorn’s) and hospital’s motion for summary judgment in this defamation case should have been granted. The injury to plaintiffs’ child had been reported to Child Protective Services which ultimately determined the report to be unfounded: Social Services Law § 413 requires certain individuals, including physicians like […]

July 25, 2019

Employment Law, Unemployment Insurance

CLAIMANT’S RECEIPT OF STRIKE BENEFITS DID NOT DISQUALIFY HIM FROM RECEIVING UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT).

The Third Department determined claimant was receiving strike benefits which did not disqualify him from receiving unemployment insurance benefits: … [I]t is well settled that “whether a claimant is totally unemployed for purposes of receiving unemployment insurance benefits is a factual issue for the Board and its determination will be upheld if supported by substantial […]

July 25, 2019

Attorneys, Criminal Law, Evidence

DEFENDANT SUBMITTED EVIDENCE RAISING CONCERNS ABOUT WHETHER HIS GUILTY PLEA WAS ENTERED VOLUNTARILY AND WHETHER HE RECEIVED EFFECTIVE ASSISTANCE OF COUNSEL, DEFENDANT’S MOTION TO VACATE THE JUDGMENT OF CONVICTION SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING (THIRD DEPT).

The Third Department, reversing County Court, determined defendant’s motion to vacate his conviction by guilty plea should not have been denied without a hearing. Defendant presented DNA evidence of a genetic inability to metabolize certain medications he was taking to address his mental health. In addition, defendant raised issues concerning ineffective assistance of counsel. Defense […]

July 25, 2019

Civil Procedure, Evidence, Negligence

SPOLIATION WARRANTED STRIKING THE COMPLAINT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the destruction of plaintiff’s truck, which was allegedly struck by defendant’s truck, warranted striking the complaint: … [O]n their motion pursuant to CPLR 3126 to strike the complaint, the defendants sustained their burden of establishing that the plaintiff was obligated to preserve the truck at the time […]

July 24, 2019

Labor Law-Construction Law

PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS SCAFFOLD-COLLAPSE CASE SHOULD HAVE BEEN GRANTED IN THIS LABOR LAW 240 (1) ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that plaintiff’s motion for summary judgment in this scaffold-collapse, Labor Law 240 (1) action should have been granted. The defendant did not raise a question of fact whether plaintiff’s omission (failure to use clips) was sole proximate cause of the movement of the scaffold and the fall: … [T]he […]

July 24, 2019

Administrative Law, Municipal Law, Vehicle and Traffic Law

COUNTY’S MOTION FOR SUMMARY JUDGMENT IN ITS ACTION FOR SEIZURE AND FORFEITURE OF DEFENDANT’S VEHICLE AFTER A DWI CONVICTION SHOULD NOT HAVE BEEN GRANTED, THE COUNTY DID NOT COMPLY WITH THE NOTICE REQUIREMENTS OF THE COUNTY CODE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the county’s motion for summary judgment in its action to seize defendant’s vehicle pursuant to the Nassau County Administrative Code after a DWI conviction (Vehicle and Traffic Law 1192) should not have been granted. The county did not comply with the notice requirements of the code: …. [T]he complaint, […]

July 24, 2019

Municipal Law, Negligence

QUESTION OF FACT WHETHER THE BUS STOPPED IN AN UNUSUAL AND VIOLENT WAY IN THIS COMMON CARRIER INJURY CASE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined there was a question of fact about whether the bus on which plaintiff was a passenger stopped in an unusual and violent way, injuring her: To prevail on a cause of action alleging that a common carrier was negligent in stopping a bus, a plaintiff must prove that […]

July 24, 2019

Contract Law, Insurance Law

INSURER DID NOT TIMELY NOTIFY THE ADDITIONAL INSUREDS OF THE DISCLAIMER OF COVERAGE, INSURER MUST DEFEND AND INDEMNIFY THE ADDITIONAL INSUREDS IN THIS CONSTRUCTION ACCIDENT CASE (SECOND DEPT).

The Second Department determined defendant insurer (Utica) failed to timely disclaim coverage of the additional insureds and was therefore obligated to defend and indemnify the additional insureds in this construction accident case: … [T]he plaintiff AVR-Powell C Development Corp. (hereinafter AVR-Powell), the owner of and general contractor at a construction site located on Lax Avenue […]

July 24, 2019

Animal Law, Evidence

THE FACT THAT THE DOG WAS A GUARD DOG AND THE NATURE OF THE ATTACK AND INJURIES RAISED A QUESTION OF FACT ABOUT DEFENDANTS’ KNOWLEDGE OF THEIR DOG’S VICIOUS PROPENSITIES IN THIS DOG BITE CASE (SECOND DEPT)

The Second Department determined the evidence of defendants’ dog’s vicious propensities was sufficient to warrant denial of defendants’ motion for summary judgment in this dog bite case: … [T]he defendants met their prima facie burden of demonstrating their entitlement to judgment as a matter of law dismissing the complaint insofar as asserted on behalf of […]

July 24, 2019

Civil Procedure

AN ORDER REQUIRING COMPLIANCE WITH DISCOVERY DEMANDS WHICH WAS NOT SERVED ON THE DEFENDANT BY THE PLAINTIFF IS NOT ENFORCEABLE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined an order that was not served on the defendant by the plaintiff, here an order striking the answer if discovery demands were not complied with by a specified date, was not enforceable: … [T]he plaintiff, as the successful moving party given that the Supreme Court conditionally granted that branch of […]

July 24, 2019

About Bruce Freeman

Entries by Bruce Freeman

CLAIMANT’S RECEIPT OF STRIKE BENEFITS DID NOT DISQUALIFY HIM FROM RECEIVING UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT).

DEFENDANT SUBMITTED EVIDENCE RAISING CONCERNS ABOUT WHETHER HIS GUILTY PLEA WAS ENTERED VOLUNTARILY AND WHETHER HE RECEIVED EFFECTIVE ASSISTANCE OF COUNSEL, DEFENDANT’S MOTION TO VACATE THE JUDGMENT OF CONVICTION SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING (THIRD DEPT).

SPOLIATION WARRANTED STRIKING THE COMPLAINT (SECOND DEPT).

PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS SCAFFOLD-COLLAPSE CASE SHOULD HAVE BEEN GRANTED IN THIS LABOR LAW 240 (1) ACTION (SECOND DEPT).

COUNTY’S MOTION FOR SUMMARY JUDGMENT IN ITS ACTION FOR SEIZURE AND FORFEITURE OF DEFENDANT’S VEHICLE AFTER A DWI CONVICTION SHOULD NOT HAVE BEEN GRANTED, THE COUNTY DID NOT COMPLY WITH THE NOTICE REQUIREMENTS OF THE COUNTY CODE (SECOND DEPT).

QUESTION OF FACT WHETHER THE BUS STOPPED IN AN UNUSUAL AND VIOLENT WAY IN THIS COMMON CARRIER INJURY CASE (SECOND DEPT).

INSURER DID NOT TIMELY NOTIFY THE ADDITIONAL INSUREDS OF THE DISCLAIMER OF COVERAGE, INSURER MUST DEFEND AND INDEMNIFY THE ADDITIONAL INSUREDS IN THIS CONSTRUCTION ACCIDENT CASE (SECOND DEPT).

THE FACT THAT THE DOG WAS A GUARD DOG AND THE NATURE OF THE ATTACK AND INJURIES RAISED A QUESTION OF FACT ABOUT DEFENDANTS’ KNOWLEDGE OF THEIR DOG’S VICIOUS PROPENSITIES IN THIS DOG BITE CASE (SECOND DEPT)

AN ORDER REQUIRING COMPLIANCE WITH DISCOVERY DEMANDS WHICH WAS NOT SERVED ON THE DEFENDANT BY THE PLAINTIFF IS NOT ENFORCEABLE (SECOND DEPT).

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