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Entries by Bruce Freeman

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PLAINTIFF’S ACTION WAS NOT FRIVOLOUS WITHIN THE MEANING OF 42 USC 1988, PREVAILING PARTY SHOULD NOT HAVE BEEN AWARDED ATTORNEY’S FEES (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the award of attorney’s fees to the prevailing party pursuant to 42 USC 1988 based upon the finding that plaintiff’s action was frivolous should not have been granted. Plaintiff sued the county claiming that her employment was terminated in retaliation for her complaints about the special education provided […]

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PLAINTIFF’S DEPOSITION TESTIMONY DEEMED INCREDIBLE AS A MATTER OF LAW IN THIS TRAFFIC ACCIDENT CASE, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, over a two-justice dissent, made the unusual finding that certain testimony did not raise a question of fact in this traffic accident case because it was incredible as a matter of law. Defendant’s motion for summary judgment should have been granted: Although we agree with the dissent that as a […]

CLAIMANT’S MATTER WAS FULLY CLOSED AND WAS PROPERLY TRANSFERRED TO THE SPECIAL FUND FOR REOPENED CASES, DESPITE CONTINUING PAYMENTS FOR MEDICAL CARE AND TREATMENT (THIRD DEPT).

The Third Department determined claimant’s matter had been fully closed and was properly transferred to the Special Fund for Reopened Cases, despite continuing payments for medical care and treatment: There is no dispute that the statutory time periods set forth in Workers’ Compensation Law § 25-a were satisfied; claimant was injured in September 2005 and the […]

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COLLATERAL ESTOPPEL CONTROLLED THIS ARBITRATION PROCEEDING TO DETERMINE HEALTH BENEFITS FOR RETIRED FIREFIGHTERS PURSUANT TO THE COLLECTIVE BARGAINING AGREEMENT (THIRD DEPT).

The Third Department, reversing Supreme Court, over a dissent, determined that collateral estoppel controlled this proceeding concerning firefighter health benefits as provided for in the collective bargaining agreement (CBA). The issue had been resolved in prior arbitration proceedings for firefighters who had retired before 2010. The instant proceeding was brought on behalf of firefighters who […]

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FINDING THAT PETITIONER’S BACK INJURY WAS NOT RELATED TO THE ACCIDENT WAS NOT SUPPORTED BY THE EXPERT TESTIMONY (THIRD DEPT).

The Third Department, reversing the comptroller, determined the petitioner, a police crossing guard, was entitled to disability benefits resulting from her being struck by a car. The finding that petitioner’s back injuries were not related to the accident was not supported by the record: … [I]nasmuch as the parties concede that petitioner is permanently incapacitated from performing […]

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NURSING SCHOOL BREACHED ITS IMPLIED CONTRACT WITH GRADUATED STUDENTS WHO WERE DEEMED INELIGIBLE FOR THE LICENSE EXAMINATION AND WERE NOT PERMITTED TO ENROLL IN A COLLEGE PROGRAM (FIRST DEPT).

The First Department determined defendant nursing school, AUA, breached an implied contract with the graduated students. but not with the students who withdrew from the program: In a prior decision in this action, this Court expressly recognized that there were specific promises which established the existence of an implied contract between plaintiffs and defendant AUA […]

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MANAGER OF COOPERATIVE DID NOT HAVE A DUTY TO PROVIDE SECURITY IN EXTERIOR PUBLIC AREAS IN THIS THIRD PARTY ASSAULT CASE (FIRST DEPT).

The First Department, reversing Supreme Court, determined that the manager of a cooperative complex could not be liable for a third party assault occurring in exterior public areas: Plaintiff Sander Palaj, and his wife suing derivatively, commenced this action to recover for personal injuries he allegedly sustained when he was shot outdoors in the co-operative […]

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STIPULATION OF DISCONTINUANCE OF THE PRIOR FORECLOSURE ACTION DID NOT DE-ACCELERATE THE DEBT, INSTANT FORECLOSURE ACTION IS THEREFORE TIME-BARRED (SECOND DEPT).

The Second Department determined the prior action for foreclosure accelerated the debt and the subsequent stipulation of discontinuance did not de-accelerate the debt. The instant foreclosure action was therefore time-barred: … [D]efendant established that the six-year statute of limitations began to run on the entire debt on April 21, 2008, the date the plaintiff accelerated […]

PLAINTIFF, WHO WAS SWEEPING THE FLOOR WHEN HE WAS STRUCK BY BY A PIECE OF A SKIDLOADER USED TO HOIST A MOTOR, WAS NOT ENGAGED IN AN ACTIVITY COVERED BY LABOR LAW 240 (1), 241 (6) OR COMMON LAW NEGLIGENCE (SECOND DEPT).

The Second Department determined that plaintiff’s Labor Law 240 (1), 241 (6) and common law negligence causes of action were properly dismissed. Plaintiff was sweeping the floor at an auto wrecking ship when “a piece of a skidloader being used to hoist a car engine broke and fell onto him:” Labor Law § 240(1) is […]

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