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Entries by Bruce Freeman

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DEFENDANT VIOLATED THE VEHICLE AND TRAFFIC LAW WHEN SHE MADE A LEFT TURN INTO PLAINTIFF’S PATH, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED, STATEMENT IN A MEDICAL RECORD ABOUT PLAINTIFF’S SPEED WAS UNRELATED TO DIAGNOSIS OR TREATMENT AND WAS NOT SOURCED, THE STATEMENT SHOULD NOT HAVE BEEN CONSIDERED AS AN ADMISSION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment in this intersection traffic accident case. Defendant Lucia Wager made a left turn into plaintiff’s path in violation of Vehicle and Traffic Law 1141. The unsourced statement in the medical record concerning plaintiff’s speed was not related to his diagnosis or treatment and […]

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PLAINTIFF CONTRACTOR DID NOT ALLEGE IT WAS LICENSED TO DO HOME IMPROVEMENT WORK IN ITS COMPLAINT ALLEGING BREACH OF CONTRACT AND SEEKING TO FORECLOSE ON A MECHANIC’S LIEN, THE COMPLAINT SHOULD HAVE BEEN DISMISSED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the defendant general contractor’s motion to dismiss the complaint brought by plaintiff subcontractor, based upon the subcontractor’s failure to allege it was licensed to do home improvement work, should have been granted: “Pursuant to CPLR 3015(e), a complaint that seeks to recover damages for breach of a home […]

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DEFENDANT TOWN DID NOT DEMONSTRATE THE HUMP OVER WHICH PLAINTIFF ALLEGEDLY TRIPPED AND FELL WAS OPEN AND OBVIOUS, TOWN’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the defendant town did not demonstrate the hump over which plaintiff allegedly tripped and fell was open and obvious. Therefore the town’s motion for summary judgment should not have been granted: The Town had installed a drain to keep water off this particular ballfield and covered the […]

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STIPULATION OF DISCONTINUANCE ENTERED INTO BY PLAINTIFF’S ATTORNEY COULD NOT BE INVALIDATED, EVEN THOUGH PLAINTIFF CHANGED HER MIND BEFORE THE STIPULATION WAS FILED, NO EVIDENCE OF DURESS, FRAUD, MISTAKE, OVERREACHING (SECOND DEPT).

he Second Department determined a stipulation of settlement entered by plaintiff’s attorney was a binding contract. The fact that plaintiff changed her mind before the stipulation was filed was of no consequence. Plaintiff made no effort to demonstrate the contract was invalid due to duress, fraud, mistake or overreaching: We agree with the Supreme Court’s determination […]

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DAMAGES FOR BREACH OF HOME IMPROVEMENT CONTRACT NOT PROVEN, RESTITUTION IS NOT A REMEDY UNDER THE GENERAL BUSINESS LAW, GROUNDS FOR PUNITIVE DAMAGES NOT PROVEN, STATUTORY FEES, INCLUDING ATTORNEY’S FEES, APPLICABLE (SECOND DEPT).

The Second Department determined plaintiff did not submit sufficient proof of damages stemming from the alleged breach of a home improvement contract, and the restitution and punitive damages awards were improper. The statutory General Business Law awards, including attorney’s fees, were applicable: … [T]he plaintiff failed to meet her burden of proving damages for breach of […]

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ALTHOUGH DEFENDANT MAY NOT HAVE INTENDED TO INJURE PLAINTIFF IN A PHYSICAL ALTERCATION WITH OTHERS, THE COMPLAINT ALLEGED ONLY INTENTIONAL CONDUCT BY THE DEFENDANT, THE NEGLIGENCE AND NEGLIGENT INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS CAUSES OF ACTION WERE PROPERLY DISMISSED (SECOND DEPT).

The Second Department determined the negligence and negligent infliction of emotional distress causes of action were property dismissed. Although defendant (Domnitser) may not have intended to strike plaintiff in an altercation with others, the complaint alleged only intentional conduct by the defendant: Although “the same act may constitute battery or negligence depending on whether or […]

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SCHOOL DISTRICT NOT LIABLE FOR A SEXUAL ASSAULT BY A STUDENT BEFORE CLASSES STARTED, THE ATTACK WAS NOT FORESEEABLE, ALTHOUGH PLAINTIFF WAS A SPECIAL EDUCATION STUDENT, HER EDUCATION PLAN DID NOT PROVIDE FOR AN AIDE TO ESCORT HER FROM THE BUS TO THE SCHOOL OR BETWEEN CLASSES (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that defendant school district’s motion for summary judgment in this third party assault case should have been granted. Infant plaintiff, Deb B, a special education student, alleged she was sexually assaulted by another special education student outside the school building before classes started. Deb B.’s education plan did not […]

MOTION PAPERS WERE MAILED TO DEFENDANT 20, NOT 21, DAYS BEFORE THE RETURN DATE, THEREFORE THE CROSS MOTION, SERVED SIX DAYS BEFORE THE RETURN DATE, WAS TIMELY (SECOND DEPT). ​

The Second Department, reversing Supreme Court, noted that the denial of a cross motion as untimely was improper because plaintiff did not mail the motion papers 21 days before the return date: The plaintiff served its motion by regular mail on March 17, 2016, with a return date of April 6, 2016. In order to […]

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TRIAL TESTIMONY ALLEGING MULTIPLE INSTANCES OF SEXUAL INTERCOURSE IN THE SINGLE MONTH ENCOMPASSED BY THIRTY INDICTMENT COUNTS RENDERED THOSE COUNTS DUPLICITOUS REQUIRING DISMISSAL (SECOND DEPT).

The Second Department dismissed the counts of the sexual-offense indictment which were rendered duplicitous by the trial evidence. The counts alleging sexual intercourse with the complainant when she was 13 were not duplicitous on the face of the indictment, but the complainant testified sexual intercourse occurred at least 20 times during each month alleged in the […]

COMPANY WHICH HIRED PLAINTIFF’S EMPLOYER AND PROPERTY OWNER LIABLE FOR PLAINTIFF’S FALL UNDER LABOR LAW 240 (1) AND 241 (6), THE COMPANY WHICH HIRED PLAINTIFF’S EMPLOYER WAS A PROPER DEFENDANT BECAUSE IT HAD THE AUTHORITY TO SUPERVISE, EVEN IF IT DID NOT EXERCISE THAT AUTHORITY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the company which hired plaintiff’s employer, New York Plumbing, and the property owner,, Park Plaza, were liable for plaintiff’s fall, pursuant to Labor Law 240 (1) and 241 (6). New York Plumbing was liable because it had the authority to supervise plaintiff’s work, even if it did not […]

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