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Entries by Bruce Freeman

FAILURE TO INCLUDE CITY, STATE AND/OR ZIP CODES OF THE CANDIDATES’ RESIDENCES DID NOT INVALIDATE THE DESIGNATING PETITIONS (FIRST DEPT).

The First Department determined the petitioners’ article 16 proceedings were timely and the designating petitions were not facially defective: Petitioners’ article 16 special proceedings should be deemed timely because petitioners did not receive notice that their designating petitions contained defects within the 14-day statutory period prescribed by Election Law § 16-102(2) and they acted with […]

INSURED DID NOT VIOLATE THE SUM POLICY BY SETTLING WITH THE OTHER DRIVER WITHOUT THE SUM CARRIER’S CONSENT, THE SUM CARRIER WAS INFORMED OF THE SETTLEMENT AND TOOK NO ACTION WITHIN 30 DAYS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the supplementary uninsured/underinsured motorist (SUM) carrier (petitioners) was not entitled to permanently stay arbitration on the ground that the injured party (appellant) had settled with other driver’s carrier without the SUM carrier’s consent. In fact the SUM carrier had notice of the settlement and took no action within 30 […]

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DESIGNATING PETITION PROPERLY INVALIDATED AND THE CANDIDATE’S NAME WAS PROPERLY STRUCK FROM THE PRIMARY BALLOT, THE CANDIDATE’S NAME APPEARED ON DESIGNATING PETITIONS FOR TWO DIFFERENT PUBLIC OFFICES WHICH PRESUMPTIVELY MISLED THE PUBLIC (SECOND DEPT).

The Second Department determined the designating petition was properly invalidated and the candidate’s name (Duffy) was properly removed from the primary ballot. The Second Department noted that the failure to include the index number on the order to show cause and the petition was a mistake which could be disregarded. The index number was on […]

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THE CITY ALLOWED THE LOT TO BE USED FOR COMMUNITY GARDENS BUT NEVER UNEQUIVOCALLY DEDICATED THE LOT AS PARKLAND, THEREFORE THE PUBLIC TRUST DOCTRINE DID NOT APPLY AND THE CITY CAN DEVELOP THE LAND (SECOND DEPT).

The Second Department determined land used for a community garden (Lot 142) was never unequivocally dedicated as parkland by the city. Therefore the public trust doctrine did not prohibit the city from developing the land: Under the public trust doctrine, a land owner cannot alienate land that has been impliedly dedicated to parkland without obtaining […]

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NO EVIDENCE ICE ON WHICH PLAINTIFF SLIPPED AND FELL WAS FORMED BEFORE THE STORM, DEFENDANT ENTITLED TO SUMMARY JUDGMENT PURSUANT TO THE STORM IN PROGRESS RULE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the NYC Transit Authority (NYCTA) was entitled to summary judgment in this slip and fall case pursuant to the storm in progress rule. The evidence did not support plaintiff’s allegation that the ice had formed before the storm: “Under the so-called storm in progress’ rule, a property owner […]

DESIGNATING PETITION SHOULD HAVE BEEN VALIDATED, SUPREME COURT SHOULD NOT HAVE INVALIDATED TWO SIGNATURES BECAUSE THE CANDIDATE WAS NOT GIVEN THE OPPORTUNITY TO RESPOND TO THE ALLEGATION, MADE DURING CROSS-EXAMINATION AT A HEARING, THAT THE TWO SIGNATURES WERE INVALID (SECOND DEPT).

The Second Department, reversing Supreme Court, determined Supreme Court should not have invalidated two signatures on a designating petition because the candidate, Alfieri, was not given the opportunity to prepare a response to the claim the signatures were invalid. Those two signatures, combined with correcting a miscalculation of the number of signatures made by Supreme […]

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WAIVER OF APPEAL INVALID, COURT NOT BOUND BY PURPORTED COMMITMENT TO A PARTICULAR SENTENCE AT THE TIME OF THE PLEA, PRESENTENCE REPORT INADEQUATE, SENTENCE REVERSED (SECOND DEPT). ​

The Second Department, reversing defendant’s sentence and remitting for resentencing, determined defendant’s waiver of appeal was invalid and the sentencing court did not have sufficient information about the defendant at the time of sentencing. The presentence investigation report was incomplete, in part because there was no interpreter available. The Second Department further determined that the […]

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ALLEGED ASSAULT BY DOCTOR WAS OUTSIDE THE SCOPE OF THE DOCTOR’S EMPLOYMENT BY DEFENDANT HOSPITAL, THE ACTION AGAINST THE HOSPITAL PURSUANT TO THE DOCTRINE OF RESPONDEAT SUPERIOR SHOULD HAVE BEEN DISMISSED, TIME FOR SUMMARY JUDGMENT MOTION STARTED ANEW AFTER THE NOTE OF ISSUE WAS VACATED, FAILURE TO ATTACH PLEADINGS TO MOTION FOR SUMMARY JUDGMENT NOT FATAL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined this third-party assault case against the defendant hospital based upon an alleged sexual assault by an employee-doctor should have been dismissed. Because the alleged assault and battery was not in furtherance of defendant’s business, the doctrine of respondeat superior did not apply. The Second Department noted that the […]

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DEFENDANT DID NOT DEMONSTRATE WHEN THE AREA WAS LAST INSPECTED AND THEREFORE DID NOT DEMONSTRATE IT LACKED CONSTRUCTIVE NOTICE OF THE ICE IN THIS SLIP AND FALL CASE, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the defendant condominium’s motion for summary judgment in this ice slip and fall case should not have been granted. Defendant did not demonstrate when the area had last been inspected: “A property owner will be held liable for a slip-and-fall accident involving snow and ice on its […]

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PLAINTIFFS’ ACTION SEEKING TO ENJOIN THE CONSTRUCTION OF A HOME PLAINTIFFS CONTENDED WAS IN VIOLATION OF THE TOWN CODE SHOULD HAVE BEEN DISMISSED PURSUANT TO THE DOCTRINE OF LACHES (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the doctrine of laches applied to plaintiffs’ action seeking to enjoin defendant’s construction of a house. Plaintiffs alleged the construction violated the Town Code: ” To establish laches, a party must show: (1) conduct by an offending party giving rise to the situation complained of, (2) delay […]

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