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Entries by Bruce Freeman

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HERE THE PLAINTIFF WAS IN PRIVITY WITH A NONPARTY WHICH WAS DEEMED TO HAVE HAD A “VICARIOUS DAY IN COURT” SUCH THAT THE DOCTRINE OF RES JUDICATA PRECLUDED PLAINTIFF’S ACTION (FIRST DEPT).

The First Department, reversing Supreme Court, in a full-ledged opinion by Justice Scarpulla, determined the doctrine of res judicata required dismissal of plaintiff’s fraudulent conveyance cause of action. The lawsuit concerned disputed ownership of precious gems. The opinion is fact-specific and too complex to fairly summarize here. With respect to the application of the res […]

THE WORKERS’ COMPENSATION BOARD’S CONCLUSION THAT CLAIMANT DID NOT PARTICIPATE IN THE WORLD TRADE CENTER RESCUE AND CLEANUP OPERATION WAS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined the Board’s conclusion that claimant did not participate in the rescue, recovery and cleanup operations at the World Trade Center (WTC) was not supported by the evidence: … [C]laimant testified that, during her October 2001 and December 2001 assignments, she was assigned to the NYPD’s command […]

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THE TREBLE DAMAGES PROVISION IN RPAPL 861 FOR THE IMPROPER TRIMMING OR REMOVAL OF TREES FROM ANOTHER’S PROPERTY IS PUNITIVE IN NATURE; HERE THE TOWN TRIMMED AND REMOVED TREES FROM PLAINTIFF’S LAND; BECAUSE A MUNICIPALITY CANNOT BE ASSESSED PUNITIVE DAMAGES, THE TREBLE DAMAGES AWARD WAS REVERSED (CT APP).

The Court of Appeals, reversing the Appellate Division, determined the treble damages provision in RPAPL 861 is punitive in nature and therefore cannot be imposed upon a municipality. Here the town removed and trimmed trees along a roadway. Plaintiff, the owner of the land abutting the road, sued and was awarded treble damages. The Appellate […]

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IN THE CONTEXT OF DRIVING WITH A SUSPENDED LICENSE, THE COURT OF APPEALS EXPLAINED THE CRITERIA FOR A VALID MISDEMEANOR COMPLAINT, VERSUS A MISDEMEANOR INFORMATION (CT APP). ​

The Court of Appeals, affirming the convictions by guilty pleas to misdemeanor complaints, in a full-fledged opinion by Judge Troutman, determined the factual allegations in the complaints were sufficient. The defendants were charged with driving with a suspended license and argued the complaints did not demonstrate reasonable cause to believe they knew they their licenses […]

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IN REINSTATING THE ACTION AFTER VACATING THE ORDER GRANTING SUMMARY JUDGMENT TO DEFENDANTS’, THE SECOND DEPARTMENT EXPLAINED WHAT SHOULD BE ALLEGED IN A COMPLAINT FOR LABOR LAW 240(1), 241(6) AND 200 CAUSES OF ACTION (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined plaintiff’s motion to vacate the order granting defendants’ motion for summary judgment in this Labor Law 240(1), 241(6) and 200 action should have been granted. Plaintiff fell through the roof of the building he was working on. Apparently plaintiff failed to answer the summary judgment motion because of […]

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PLAINTIFF INSURER DENIED FOUR CLAIMS FOR NO-FAULT INSURANCE BENEFITS ASSOCIATED WITH FOUR DISTINCT CHIROPRACTIC TREATMENTS PROVIDED BY DEFENDANT TO A WOMAN INJURED IN A TRAFFIC ACCIDENT; EACH OF THE FOUR CLAIMS WAS FOR AN AMOUNT BELOW $5000; AN ARBITRATOR AWARDED THE CLAIMED BENEFITS TO THE DEFENDANT; PLAINTIFF THEN SOUGHT DE NOVO REVIEW OF THE ARBITRAL AWARDS WHICH HAS A $5000 THRESHOLD; THE FOUR DISTINCT ARBITRAL AWARDS CANNOT BE COMBINED TO MEET THE $5000 THRESHOLD (SECOND DEPT). ​

The Second Department, reversing Supreme Court, in a full-fledged opinion by Justice Duffy, determined the complaint in this no-fault insurance-benefit action should have been dismissed for lack of subject matter jurisdiction: The issue on appeal, an issue of first impression for this Court, is whether, under certain circumstances, separate and distinct arbitral awards can be […]

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WHERE A DEFENDANT IS AN “ELIGIBLE YOUTH,” THE SENTENCING COURT MUST CONSIDER YOUTHFUL OFFENDER TREATMENT; IF THE RECORD IS SILENT ON THE ISSUE, THE SENTENCE WILL BE VACATED AND THE MATTER REMITTED (SECOND DEPT).

The Second Department, vacating defendant’s sentence and remitting the matter, determined defendant was an “eligible youth” but the record was silent about whether the court considered youthful offender treatment: “Criminal Procedure Law § 720.20(1) requires a court to make a youthful offender determination in every case where the defendant is eligible, even where the defendant […]

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A DEFENDANT’S RIGHT TO BE PERSONALLY PRESENT FOR SENTENCING EXTENDS TO RESENTENCING AND TO THE AMENDMENT OF A SENTENCE (SECOND DEPT). ​

The Second Department, reversing Supreme Court and remitting the matter, determined defendant had a right to be present at his resentencing: The defendant was not present at the resentencing proceeding in June 2023 because he was incarcerated in Florida. The Supreme Court nonetheless resentenced the defendant to the same sentence as had been previously imposed. […]

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RESTRAINING A PERSON FOR A FEW SECONDS WHILE ATTEMPTING TO PULL THAT PERSON INTO A VEHICLE DOES NOT SATISFY THE CRITERIA FOR KIDNAPPING (SECOND DEPT).

The Second Department, reversing (modifying) Family Court in this juvenile delinquency proceeding, determined the evidence did not support the kidnapping charge: … Family Court’s determination that the appellant committed acts which, if committed by an adult, would have constituted the crime of kidnapping in the second degree was against the weight of the evidence. “A […]

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WHERE THE ESSENCE OF A MEDICAL MALPRACTICE ACTION IS THE FAILURE TO PROPERLY DIAGNOSE PLAINTIFF’S CONDITION, THE CRITERIA FOR A “LACK OF INFORMED CONSENT” CAUSE OF ACTION ARE NOT MET (SECOOND DEPT

The Second Department, reversing (modifying) Supreme Court in this medical malpractice action, determined the “lack of informed consent” cause of action should have been dismissed because the gravamen of the the allegations was the failure to evaluate the seriousness of plaintiff’s condition: To establish a cause of action to recover damages for medical malpractice based […]

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