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Entries by Bruce Freeman

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DEFECTIVE A-FRAME LADDER ENTITLED PLAINTIFF TO SUMMARY JUDGMENT IN THIS LABOR LAW 240 (1) ACTION, STATEMENTS IN MEDICAL RECORDS WERE INADMISSIBLE HEARSAY (SECOND DEPT).

The Second Department determined plaintiff was entitled to summary judgment in this Labor Law 240 (1) action. Plaintiff fell from an A-frame ladder which had a defective locking mechanism. The court noted that the evidence in the medical records did not raise a question of fact because the statements in the records were not admissible. […]

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NONPARTY SUBPOENA PROPERLY QUASHED BECAUSE IT DID NOT PROVIDE THE REASONS FOR THE REQUESTED DISCLOSURE, QUESTIONS OF FACT WHETHER STIPULATION OF SETTLEMENT WAS UNCONSCIONABLE AND WHETHER PLAINTIFF EXECUTED THE STIPULATION UNDER DURESS (SECOND DEPT).

The Second Department, modifying Supreme Court in this divorce action, determined: (1) the subpoena for a nonparty was defective because the reasons for the disclosure were not provided; (2) the stipulation of settlement was not demonstrated to be unconscionable as a matter of law; and (3) there were questions of fact whether the stipulation was signed […]

PUBLIC POLICY PRECLUDED RECOVERY OF CHILD SUPPORT OVERPAYMENTS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that public policy precluded plaintiff from recovering child support overpayments: “There is strong public policy in this state, which the [Child Support Standards Act] did not alter, against restitution or recoupment of the overpayment of child support” … . The rationale behind this policy is that child support […]

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SANCTION FOR PLAINTIFF’S FAILURE TO COMPLY WITH A CONDITIONAL ORDER OF PRECLUSION SHOULD NOT HAVE GONE BEYOND THE PENALTY DESCRIBED IN THE ORDER (SECOND DEPT).

The Second Department, modifying Supreme Court, determined that the sanction imposed for plaintiff’s failure to turn over audio files and transcripts she was apparently relying upon to prove employment discrimination should not have gone beyond the terms of the conditional order of preclusion: “A conditional order of preclusion requires a party to provide certain discovery […]

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PLAINTIFF WAS STRUCK BY A FACE PLATE WHICH FELL OFF AN AIR CONDITIONER, ALTHOUGH PLAINTIFF MADE OUT A PRIMA FACIE CASE UNDER THE DOCTRINE OF RES IPSA LOQUITUR, DEFENDANTS RAISED QUESTIONS OF FACT ABOUT THE CAUSE AND EXCLUSIVE CONTROL, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SEOND DEPT).

The Second Department, reversing Supreme Court, determined that, although a prima facie case was made out under the doctrine of res ipsa loquitur, the defendant raised questions of fact. Plaintiff was injured when a face plate fell off an air conditioner: … [A]lthough the plaintiff demonstrated, prima facie, that a face plate falling off an […]

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BANK FAILED TO DEMONSTRATE COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 1304, BANK’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN DENIED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the plaintiff bank failed to demonstrate compliance with the notice requirements of RPAPL 1304. Therefore the bank’s motion for summary judgment should not have been granted: … [T]he plaintiff relied upon the affidavit of an employee who claimed that the plaintiff’s business records showed that RPAPL 1304 notices […]

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SUPREME COURT SHOULD NOT HAVE SEARCHED THE RECORD AND AWARDED SUMMARY JUDGMENT TO THE CITY IN THIS SIDEWALK SLIP AND FALL CASE, NO SUCH MOTION WAS BEFORE THE COURT (SECOND DEPT).

The Second Department determined that Supreme Court should not have searched the record and awarded summary judgment to the city in this sidewalk slip and fall case. No such motion was before the court: … [T]he Supreme Court should not have, in effect, searched the record and awarded summary judgment to the City, which did […]

PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON ACTION TO RECOVER PROCEEDS OF LIFE INSURANCE POLICY, INSURER DID NOT DEMONSTRATE THE INSURED WAS NOTIFIED OF THE PREMIUM DUE DATE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the life insurance policy was never canceled and plaintiff was entitled to summary judgment in the action to recover the proceeds: As relevant here, Insurance Law § 3211 provides that “[n]o policy of life insurance . . . delivered or issued for delivery in this state . […]

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DEFENDANT’S MOTION TO VACATE A DEFAULT JUDGMENT SHOULD HAVE BEEN GRANTED DESPITE FAILURE TO UPDATE THE ADDRESS ON FILE WITH THE SECRETARY OF STATE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion to vacate a default judgment should have been granted, despite defendant’s failure to update its address with the Secretary of State: There was no evidence that the defendant received actual notice of the summons delivered to the Secretary of State, which does not constitute personal delivery, […]

QUESTION OF FACT WHETHER DEFENDANTS HAD ACTUAL OR CONSTRUCTIVE NOTICE OF ELEVATED WHEEL STOP IN THIS SLIP AND FALL CASE (SECOND DEPT).

The Second Department determined defendants’ motion for summary judgment in this parking lot slip and fall case was properly denied. There was a question of fact whether defendants had actual or constructive notice of an elevated plastic wheel stop: The appellants failed to demonstrate, prima facie, that they lacked constructive notice of the elevated and […]

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