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Entries by Bruce Freeman

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THE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION MET ITS STATUTORY BURDEN TO ASSIST PETITIONER, A SEX OFFENDER, IN FINDING SUITABLE HOUSING UPON RELEASE, APPELLATE DIVISION REVERSED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, over a partial dissent and an extensive dissenting opinion, determined that the Department of Corrections and Community Supervision (DOCCS) had met its burden of providing assistance to sex offenders in finding suitable housing upon release. Here the petitioner was transferred to a residential treatment facility […]

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EVEN THOUGH DEFENDANT WAS NOT ENTITLED TO A JURY TRIAL BECAUSE THE CHARGES WERE B MISDEMEANORS, THE FACT THAT DEPORTATION WAS A POTENTIAL PENALTY ENTITLED DEFENDANT TO A JURY TRIAL PURSUANT TO THE SIXTH AMENDMENT (CT APP).

The Court of Appeals, reversing the appellate division, in a full-fledged opinion by Judge Stein, over two separate dissenting opinions, determined that the potential penalty of deportation entitles a defendant to a jury trial, even if, as here, the charges are B misdemeanors which are triable without a jury pursuant to Criminal Procedure Law 340.40: […]

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REVOCATION OF RACEHORSE TRAINER’S LICENSE BY THE NYS RACING AND WAGERING BOARD SHOULD HAVE BEEN CONFIRMED, SUBSTANTIAL EVIDENCE STANDARD WAS MET (CT APP).

The Court of Appeals, reversing the Appellate Division, determined the revocation of petitioner’s racehorse trainer’s license by the NYS Racing and Wagering Board should have been confirmed. The Court of Appeals did not write a decision and adopted the reasoning of the dissenting justice on the Appellate Division: From the Dissent in the Appellate Division’s […]

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THE GRANT OF FORD’S MOTION TO SET ASIDE THE VERDICT IN THIS ASBESTOS CASE AFFIRMED, EVIDENCE OF A CAUSAL CONNECTION BETWEEN ASBESTOS IN BRAKE LININGS AND PLAINTIFF’S DECEDENT’S MESOTHELIOMA NOT SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE (CT APP).

The Court of Appeals, affirming the grant of defendant-Ford’s motion to set aside the verdict in this asbestos case, over two concurring opinions and a dissenting opinion, determined the evidence of a causal connection between the asbestos in brake linings on Ford vehicles and plaintiff’s decedent’s mesothelioma was legally insufficient. Plaintiff’s decedent worked in a garage and was exposed […]

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PLAINTIFF DID NOT PLACE HER PRIOR KNEE INJURIES IN CONTROVERSY BY ALLEGING A LOSS OF ENJOYMENT OF LIFE, THEREFORE PLAINTIFF DID NOT WAIVE HER PATIENT-PHYSICIAN PRIVILEGE RE: THE KNEE-INJURY MEDICAL RECORDS, THE FIRST DEPT DECIDED NOT TO FOLLOW THE 2ND DEPT’S CONTRARY RULING, EXTENSIVE TWO-JUSTICE DISSENT (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Singh, over an extensive two-justice dissenting opinion, determined that the plaintiff in this traffic accident case did not place her prior knee injuries in controversy and the defendants’ demand for the related medical authorizations should not have been granted. The First Department held plaintiff had not […]

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LAW OFFICE FAILURE EXCUSE INSUFFICIENT, MOTION TO VACATE DISCONTINUANCE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the law office failure excuse was insufficient to warrant vacating the order of discontinuance: While courts have discretionary power to relieve a party from a judgment or order for sufficient reason and in the interest of substantial justice… , “[a] court’s inherent power to exercise control over its […]

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LAW OFFICE FAILURE EXCUSE WAS SUFFICIENT TO WARRANT GRANTING DEFENDANTS’ MOTION TO VACATE THE DEFAULT JUDGMENTS, SUPREME COURT REVERSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ “law office failure” excuse was sufficient to warrant granting the motion to vacate the default judgments: “A party seeking to vacate a default in appearing or answering pursuant to CPLR 5015(a)(1), and thereupon to serve a late answer, must demonstrate a reasonable excuse for the default and a […]

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A METAL PROTRUSION IN A PARKING LOT MEASURING AN INCH OR LESS WAS A NON-ACTIONABLE TRIVIAL DEFECT, SUPREME COURT REVERSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that a metal protrusion of an inch or less in a parking lot constituted a trivial defect which was not actionable in this slip and fall case: In determining whether a defect is trivial, courts “must examine all of the facts presented, including the width, depth, elevation, irregularity […]

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WHETHER A CONDITION IS OPEN AND OBVIOUS SPEAKS TO COMPARATIVE NEGLIGENCE, AN OPEN AND OBVIOUS CONDITION CAN BE THE BASIS FOR LIABILITY IF THE CONDITION AMOUNTS TO A TRAP FOR THE UNWARY OR DISTRACTED, MOTION TO SET ASIDE THE VERDICT SHOULD NOT HAVE BEEN GRANTED, MOTION FOR SANCTIONS AGAINST DEFENSE COUNSEL FOR BRINGING THE MOTION TO SET ASIDE SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, over a partial dissent, determined defendants’ motion to set aside the verdict in this stairway slip and fall case should not have been granted, and the plaintiff’s motion for sanctions (attorney’s fees) for frivolous conduct (bringing the motion to set aside) should have been granted. The dissenting justice agreed […]

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ANTISUBROGATION RULE BARRED PLAINTIFF INSURER’S CAUSES OF ACTION, THE UNDERLYING ACTION ALLEGED NEGLIGENCE AND LABOR LAW VIOLATIONS STEMMING FROM A CONSTRUCTION ACCIDENT (SECOND DEPT).

The Second Department, in this construction accident case with multiple subcontractors, insurers and insureds, determined that the antisubrogation rule barred plaintiff-insurer’s causes of action: The nonparty-respondent The New School (hereinafter TNS) entered into a contract with the nonparty-respondent Tishman Construction Corporation of New York (hereinafter Tishman) for the building of a new facility. Pursuant to […]

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