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Entries by Bruce Freeman

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ONE FRAUDULENT SIGNATURE DID NOT CONSTITUTE CLEAR AND CONVINCING EVIDENCE THE DESIGNATING PETITION WAS PERMEATED BY FRAUD (THIRD DEPT).

The Third Department determined that Supreme Court properly declined to invalidate the entire designating petition after finding one signature should be invalidated: Petitioner presented a witness who testified unequivocally that the signature on the petition attributed to her was not her own, noting that her name appears the way it does when her husband signs […]

CLAIMANT WAS AN EMPLOYEE OF A CONSULTING COMPANY FOR AFTERSCHOOL PROGRAMS AND WAS THEREFORE ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT).

The Third Department determined claimant was an employee of a consulting company for afterschool programs (LaRue) and was therefore entitled to unemployment insurance benefits: Claimant was hired by LaRue to perform site observations, work on grant applications and conduct training workshops. For site observations, LaRue provided guidance and direction to claimant on what to look […]

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CLAIMANT’S CONVICTION FOR THE UNLAWFUL MANUFACTURE OF METHAMPHETAMINES DID NOT CONSTITUTE PROOF THAT CLAIMANT PERFORMED WORK OR MADE FALSE STATEMENTS REGARDING WORK SUCH THAT CLAIMANT SHOULD BE DISQUALIFIED FROM RECEIVING BENEFITS UPON RELEASE FROM PRISON (THIRD DEPT).

The Third Department determined that claimant’s conviction for the unlawful manufacture of methamphetamine did not constitute work within the meaning of Workers’ Compensation Law 114-a. Therefore, claimant did not perform any work or make any false statements regarding work which would disqualify him from receiving benefits upon release from prison: Workers’ Compensation Law § 114-a […]

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DEFENDANT’S SUBCONTRACTOR USED A PAINT STRIPPING PRODUCT DURING AN OFFICE BUILDING RENOVATION, PLAINTIFF, AN EVENING OFFICE CLEANER, ALLEGED INJURY FROM BREATHING TOXIC FUMES, THERE IS EVIDENCE DEFENDANT HAD A DUTY TO WARN, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (FIRST DEPT).

The First Department determined defendant’s motion for summary judgment in this toxic tort case was properly denied. Plaintiff, an evening cleaner in an office building, allege she was injured by inhaling toxic fumes from a paint stripping product used by a defendant’s subcontractor (Island Painting): Defendant failed to establish prima facie that it did not […]

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ALTHOUGH CLAIMANT WAS REHIRED AFTER THE STRIKE, THE EMPLOYER HAD NOT ASSURED CLAIMANT OF THE RIGHT TO RETURN TO WORK DURING THE STRIKE, THEREFORE THE EMPLOYER WAS NOT ENTITLED TO THE SEVEN-WEEK SUSPENSION OF UNEMPLOYMENT BENEFITS DURING A STRIKE PERMITTED BY LABOR LAW 592 (THIRD DEPT).

The Third Department determined claimant was entitled to unemployment insurance benefits and were not subject to the seven-week suspension of benefits during a strike (Labor Law 592). The suspension of benefits is not applicable where, as here, the employer indicates it is hiring permanent replacements for the strikers: Although it is unclear which of claimants’ […]

NEWSPAPER DELIVERY CARRIERS ARE EMPLOYEES ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT).

The Third Department determined claimant, a newspaper delivery carrier, was an employee of the The Hearst Corporation and was therefore entitled to unemployment insurance benefits: … [T]he record demonstrates that Hearst established the delivery routes, determined the rate of pay for each route, provided carriers with customer lists containing the suggested order of delivery, handled […]

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DEFENSE COUNSEL MISCALCULATED THE NUMBER OF DAYS OF DELAY ATTRIBUTABLE TO THE PEOPLE IN THE SPEEDY TRIAL MOTION, WHICH CONSTITUTED INEFFECTIVE ASSISTANCE, CONVICTION REVERSED, INDICTMENT DISMISSED (FIRST DEPT).

The First Department, reversing defendant’s conviction and dismissing the indictment, determined defense counsel’s failure to properly calculate the days of delay attributable to the People for the speedy trial motion constituted ineffective assistance: Defendant was denied the effective assistance of counsel … with regard to his speedy trial motion. In his CPL 30.30(2) motion for […]

INJURY CAUSED BY THE INHALATION OF ASPERGILLUS FUNGUS PROPERLY DEEMED A COMPENSABLE ACCIDENTAL INJURY ENTITLING CLAIMANT TO WORKERS’ COMPENSATION BENEFITS (THIRD DEPT).

The Third Department determined injury from the inhalation of aspergillus fungus was properly classified as an accidental injury entitling claimant to workers’ compensation benefits. Claimant was exposed to the fungus at work and suffers from allergic bronchopulmonary aspergillosis: “To be compensable under the Workers’ Compensation Law, an accidental injury must arise both out of and […]

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ALLEGEDLY OPERATING A TREE-TRIMMING BUSINESS WITHOUT A LICENSE AND ENTRUSTING THE TREE-TRIMMING TRUCK TO PLAINTIFF’S CO-WORKER, IF NEGLIGENT, WERE NOT PROXIMATE CAUSES OF PLAINTIFF’S INJURY, THE DANGEROUS CONDITION ON THE TRUCK WHICH CAUSED PLAINTIFF’S INJURY WAS OPEN AND OBVIOUS, AND THE ACCIDENT WAS AN ‘EXTRAORDINARY OCCURRENCE,’ SO THERE WAS NO DUTY TO WARN (SECOND DEPT).

The Second Department determined the allegations that defendants were operating a tree-trimming business without a license and negligently entrusted the tree-trimming to one Perez (with whom plaintiff worked) were not proximate causes of the injury. Plaintiff caught a ring on his finger on a spike on a metal step on the truck and his finger […]

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PLAINTIFF SUED DEFENDANT ATTORNEYS ALLEGING INACCURATE ADVICE CAUSED HER TO FILE FOR BANKRUPTCY, BECAUSE THE LEGAL MALPRACTICE ACTION ACCRUED WHEN PLAINTIFF FILED FOR BANKRUPTCY, THE LAWSUIT BECAME PART OF THE BANKRUPTCY ESTATE AND PLAINTIFF WAS THEREBY STRIPPED OF THE CAPACITY TO SUE (SECOND DEPT).

The Second Department determined plaintiff did not have the capacity to sue the defendant attorneys for legal malpractice. The lawsuit alleged the attorneys gave inaccurate advice which caused plaintiff to file for bankruptcy on March 20, 2012. Because plaintiff’s legal malpractice action accrued on the day she filed for bankruptcy, and the lawsuit was not […]

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