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Entries by Bruce Freeman

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DEFENDANT’S STATEMENT DURING THE PLEA ALLOCUTION RAISED A VIABLE AFFIRMATIVE DEFENSE WHICH REQUIRED FURTHER INQUIRY BY THE JUDGE, ERROR IS A RARE EXCEPTION TO THE PRESERVATION REQUIREMENT (FOURTH DEPT).

The Fourth Department, vacating defendant’s guilty plea, determined defendant’s statement during the plea allocution raised a viable affirmative defense which required further inquiry by the court. The error was considered on appeal under a rare exception to the preservation requirement: Although defendant’s contention survives his valid waiver of the right to appeal … , he […]

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MOTION SEEKING SUMMARY JUDGMENT ON THE LABOR LAW 241 (6) CAUSE OF ACTION ON ONE GROUND DID NOT JUSTIFY, SUA SPONTE, SEARCHING THE RECORD AND GRANTING SUMMARY JUDGMENT ON A GROUND NOT RAISED IN THE MOTION PAPERS (FOURTH DEPT).

he Fourth Department, reversing (modifying Supreme Court), determined a motion seeking summary judgment on the Labor Law 241 (6) cause of action should not have been granted on a ground not raised in the motion. Defendants alleged the Labor Law 241 (6) cause of action should be dismissed because plaintiff was the sole proximate cause […]

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PROPRIETARY LEASE PROVISION ALLOWING THE LANDLORD TO RECOVER ATTORNEY’S FEES EVEN WHEN THE LANDLORD IS IN DEFAULT IS UNCONSCIONABLE AND UNENFORCEABLE (FIRST DEPT).

The First Department determined that a provision in a lease which required the petitioner tenant to pay the respondent landlord’s attorney’s fees even where the landlord was in default was unenforceable as unconscionable. Petitioner tenant had sued the landlord for failure to transfer shares in an apartment in accordance with petitioner’s husband’s wishes: In 2012, petitioner’s […]

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PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE OF ACTION SHOULD HAVE BEEN GRANTED, ARGUMENT IN PLAINTIFF’S REPLY PAPERS SHOULD HAVE BEEN CONSIDERED (FIRST DEPT). ​

The First Department determined plaintiff’s motion for summary judgment on his Labor Law 240(1) cause of action should have been granted, noting that plaintiff’s argument in the reply papers should have been considered because it was a response to defendants’ opposition motion: Plaintiff was injured when a metal shim plate affixed to a steel column, […]

PLAINTIFF WAS NOT INVOLVED IN CONSTRUCTION WORK WHEN HE FELL, LABOR LAW 240(1) CAUSE OF ACTION PROPERLY DISMISSED (SECOND DEPT). ​

The Second Department determined defendant’s summary judgment motion on the Labor Law 240(1) cause of action was properly granted. Although plaintiff fell when attempting to replace light bulbs in a strobe light on top of a van, he was not involved in construction work: Labor Law § 240(1) “does not cover routine maintenance done outside […]

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NEGLIGENT SUPERVISION ACTION AGAINST THE SCHOOL DISTRICT AND BUS COMPANY STEMMING FROM A FIGHT INSTIGATED BY A STUDENT ON THE BUS SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the school district’s and school bus company’s motions for summary judgment in this negligent supervision, third party assault, case should not have been granted. A six minute fight erupted on a school bus during which the two student plaintiffs were punched by another student. The school district did […]

PLAINTIFF ALLEGEDLY TRIPPED AND FELL WHEN SHE CAUGHT HER FOOT UNDER A TIRE-WHEEL STOP IN A PARKING LOT, DEFENDANTS DID NOT DEMONSTRATE WHEN THE WHEEL STOP WAS LAST INSPECTED, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this slip and fall case should not have been granted. Plaintiff allegedly caught her foot under a tire/wheel stop in defendants’ parking lot. The defendants did not present any evidence about when the wheel stop was last inspected: The defendants failed to […]

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COMPLAINT DID NOT SUFFICIENTLY DESCRIBE THE GOODS FOR WHICH PLAINTIFF WAS SEEKING PAYMENT IN THIS BREACH OF CONTRACT ACTION AS REQUIRED BY CPLR 3016, THEREFORE DEFENDANT DID NOT HAVE TO SPECIFICALLY DISPUTE EACH ITEM, A GENERAL DENIAL WAS SUFFICIENT, PLAINTIFF’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that plaintiff’s motion for summary judgment in this breach of contract action should not have been granted. The criteria for a motion pursuant to CPLR 3016 (f) alleging the failure to pay for delivered goods were not met because the complaint did not sufficiently describe the goods and […]

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COURT HAD DISCRETION TO ACCEPT A BELATED ORDER OF REFERENCE SUBMITTED AFTER THE 60-DAY DEADLINE IN 22 NYCRR 202.48 IN THIS FORECLOSURE ACTION, LAW OF THE CASE DOCTRINE DOES NOT APPLY TO A DISCRETIONARY ORDER (SECOND DEPT).

The Second Department determined Supreme Court properly exercised its discretion to accept a belated order of reference in this foreclosure action. The court noted that the law of the case doctrine does not apply to a discretionary ruling: In this action to foreclose a mortgage, the Supreme Court denied the plaintiffs’ motion for summary judgment on […]

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FINDING THAT DENNIS T IS A PERSON LEGALLY RESPONSIBLE FOR THE CARE OF A CHILD WAS PROPER, EVIDENTIARY RULE ANALOGOUS TO RES IPSA LOQUITUR SUPPORTED THE ABUSE FINDING (SECOND DEPT).

The Second Department determined Family Court properly found Dennis T was a person legally responsible for the child Steven L. The court agreed with Family Court’s finding of abuse against three persons using the Family Court Act evidence rule analogous to res ipsa loquitur: “A person is a proper respondent in an article 10 proceeding […]

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