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Entries by Bruce Freeman

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FAILURE TO INFORM INSURER OF A SETTLEMENT WITH THE INSURED PARTY IN THIS TRAFFIC ACCIDENT CASE JUSTIFIED GRANTING THE INSURER’S PETITION TO PERMANENTLY STAY ARBITRATION ON AN UNINSURED MOTORIST BENEFITS CLAIM (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the insurer’s (State Farm’s) petition to permanently stay arbitration of an uninsured motorist benefits claim should have been granted. The insureds (McLaurin and Corbin) were involved in an accident with two other cars, one of which was uninsured. The insureds settled with the other insured party (Martinez) without […]

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MOTHER’S REFUSING TO CONSENT TO AN INDIVIDUALIZED EDUCATION PROGRAM AND HER DELAY IN SCHEDULING AN INDEPENDENT NEUROPSYCHOLOGICAL EVALUATION OF THE CHILD DID NOT CONSTITUTE EDUCATIONAL OR MEDICAL NEGLECT, FAMILY COURT REVERSED (SECOND DEPT).

The Second Department, reversing Family Court, determined the evidence did not support educational neglect or medical neglect on the part of mother. The mother had refused to consent to the Individualized Education Program (IEP) and had delayed in scheduling an independent neuropsychological evaluation, neither amounted to neglect: Family Court Act § 1012(f) governs parental neglect […]

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INSUFFICIENT EVIDENCE TO SUPPORT THE ADMINISTRATION OF TWO DRUGS TO SAMUEL D, A MENTALLY ILL PERSON, OVER SAMUEL D’S OBJECTION (SECOND DEPT).

The Second Department determined that the state had demonstrated the administration of two drugs to Samuel D, a mentally ill person, over Samuel D’s objection was proper. But the state’s evidence concerning two other drugs was insufficient: The State may administer a course of medical treatment against a patient’s will if it establishes, by clear […]

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MEDICAL RECORDS OF THE VICTIM OF SEXUAL ASSAULT SHOULD NOT HAVE BEEN MADE AVAILABLE TO THE PETITIONER, WHO WAS CONVICTED OF THE SEXUAL ASSAULT, PURSUANT TO PETITIONER’S FREEDOM OF INFORMATION LAW (FOIL) REQUEST, THE RECORDS ARE PROTECTED FROM DISCLOSURE BY THE PUBLIC HEALTH LAW, THE CIVIL RIGHTS LAW AND THE PUBLIC OFFICERS LAW (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the medical records of the victim of sexual assault could not be disclosed to the petitioner, who was convicted of the sexual assault, pursuant to a Freedom of Information Law (FOIL) request. The medical records were protected from disclosure by the Public Health Law, the Civil Rights Law […]

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FINANCIAL DISCLOSURE AND A HEARING WERE NECESSARY TO DETERMINE WHETHER THE SEPARATION AGREEMENT WAS INVALID, SUPPORT AND MAINTENANCE AGREED TO BY PLAINTIFF WIFE WAS LESS THAN PLAINTIFF’S APARTMENT RENTAL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined a hearing was necessary to determine whether a separation agreement was invalid (unconscionable). The plaintiff wife did not have an attorney when the agreement was negotiated, but she consulted an attorney who advised her the support and maintenance were not sufficient to meet her needs. The amount of […]

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OUT-OF-POSSESSION LANDLORDS FAILED TO DEMONSTRATE THAT THE SLANTED FLOOR OF THE IN-GROUND POOL WAS NOT A DANGEROUS CONDITION AND THAT THEY DID NOT HAVE CONSTRUCTIVE NOTICE OF THE WAY THE POOL WAS BUILT, THE LANDLORDS’ MOTION FOR SUMMARY JUDGMENT IN THIS DIVING ACCIDENT CASE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department determined the products liability cause of action against the builder of an in-ground swimming pool (Swim Tech) properly survived summary judgment and further determined the out-of-possession landlords’ motion for summary judgment should not have been granted. Plaintiff dove into the pool and struck his head on a slant portion of the pool […]

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ALTHOUGH CLAIMANT WAS INJURED WHEN METAL POLES BEING HOISTED BY A CRANE SLIPPED OUT OF A CHOKER AND STRUCK HIM, CLAIMANT DID NOT SUBMIT EXPERT OPINION EVIDENCE RE: THE CAUSE AND DID NOT ELIMINATE QUESTIONS OF FACT RE: WHETHER HIS CONDUCT IN SECURING THE POLES WAS THE SOLE PROXIMATE CAUSE, CLAIMANT’S MOTION FOR SUMMARY JUDGMENT IN THIS LABOR LAW 240 (1) ACTION PROPERLY DENIED (SECOND DEPT).

The Second Department determined claimant was not entitled to summary judgment on his Labor Law 240 (1) cause of action. Claimant had secured metal posts with a choker. When the posts were lifted by a crane, they slipped out of the choker and struck claimant, cause traumatic brain injury. Claimant did not submit any expert […]

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COUNTY NOT LIABLE IN THIS INMATE-ON-INMATE THIRD PARTY ASSAULT CASE (SECOND DEPT).

The Second Department determined the county’s motion for summary judgment in this inmate-on-inmate third party assault case was properly granted.  Plaintiff, an inmate in county jail, was assaulted with a pool cue by another inmate (named Batts). The complaint against the county alleged negligent supervision: … [T]he County defendants demonstrated that prior to the incident, the plaintiff […]

PLAINTIFF WAS ENGAGED IN ROUTINE MAINTENANCE, NOT REPAIR, WHEN HE FELL FROM AN ELEVATED FORKLIFT, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS LABOR LAW 240 (1) ACTION SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that plaintiff injured engaging in routine maintenance of an HVAC unit, not repair. Therefore defendant’s motion for summary judgment in this Labor Law 240 (1) action should have been granted. Plaintiff fell from a forklift which was used to lift him up to HVAC unit in the ceiling: […]

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COMPLAINT STATED A CAUSE OF ACTION FOR CONSTRUCTIVE FRAUD BUT THE HEIGHTENED PLEADING REQUIREMENTS FOR ACTUAL FRAUD WERE NOT MET (FIRST DEPT).

The First Department, in an action alleging members of defendant liability company fraudulently transferred funds from the LLC to the defendant members to render the LLC insolvent. The First Department determined the constructive fraud cause of action was sufficiently pled but  the allegations did not support an actual fraud cause of action: … [T]he complaint […]

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