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Entries by Bruce Freeman

A COMPRESSOR ROLLING OFF A PALLET JACK ONTO PLAINTIFF’S ANKLE WAS NOT AN ELEVATION-RELATED ACCIDENT COVERED BY LABOR LAW 240 (1), REGULATION-VIOLATION RAISED FOR THE FIRST TIME IN OPPOSITION PAPERS PROPERLY CONSIDERED, CRITERIA FOR LABOR LAW 240 (1), 241 (6) AND 200 CAUSES OF ACTION EXPLAINED IN SOME DETAIL (SECOND DEPT).

The Second Department affirmed most of Supreme Court's rulings granting summary judgment to defendants in this Labor Law 240 (1), 241 (6) and 200 action. Plaintiff was moving a heavy compressor on a pallet jack when a wheel on the jack hit a small piece of concrete and the compressor rolled off the pallet jack […]

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PUBLIC NUISANCE CAUSE OF ACTION BROUGHT BY THE PLAINTIFF WHO ALLEGED SEXUAL ABUSE BY A PRIEST SHOULD HAVE BEEN DISMISSED, PLAINTIFF ALLEGED THE DIOCESE SHOULD HAVE RELEASED THE NAMES OF PRIESTS ACCUSED OF ABUSE (SECOND DEPT).

The Second Department determined the public nuisance cause of action, based upon the sexual abuse of plaintiff by a priest and the Diocese's failure to release the names of accused priests, should have been dismissed: “A public nuisance exists for conduct that amounts to a substantial interference with the exercise of a common right of the […]

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APPELLANT EXERCISED UNDUE INFLUENCE OVER DECEDENT, SATISFACTION OF MORTGAGE PROVIDED TO APPELLANT NULLIFIED PURSUANT TO THE RIGGS DOCTRINE, FORECLOSURE OF THE MORTGAGE DEEMED PROPER (SECOND DEPT).

The Second Department determined the appellant, Rajic, had exercised undue influence over the decedent resulting in decedent's signing over her home to Rajic and providing a satisfaction of mortgage to Rajic for a fraction of the amount due. The satisfaction of mortgage was nullified and the foreclosure action brought on behalf of the estate was deemed […]

BECAUSE DEFENDANT WAS GIVEN EXTRA TIME TO COMPLETE DISCOVERY, THE TIME TO FILE A MOTION FOR SUMMARY JUDGMENT WAS EXTENDED AS WELL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant (Macchia) should have been given an extension of the period to file a summary judgment motion based upon the referee's grant of extra time to complete discovery: Upon the filing of a note of issue, there are two separate and distinct methods to obtain further disclosure. The […]

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PEDESTRIAN PLAINTIFF’S EMERGING FROM BETWEEN PARKED CARS AND ATTEMPTING TO CROSS THE STREET WHERE THERE WAS NO CROSSWALK CONSTITUTED THE SOLE PROXIMATE CAUSE OF THE PEDESTRIAN-VEHICLE ACCIDENT, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that defendants demonstrated plaintiff's emerging from between parked cars and attempting to cross the street where there was no crosswalk constituted the sole proximate cause of the pedestrian-vehicle accident … [T]he defendants moved for summary judgment dismissing the complaint on the ground that the plaintiff, given his actions […]

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NEGLIGENT HIRING, TRAINING, SUPERVISION AND RETENTION CAUSES OF ACTION PROPERLY SURVIVED SUMMARY JUDGMENT, SCHOOL EMPLOYEE ALLEGEDLY SEXUALLY ABUSED A STUDENT, ACTIONS WERE VIABLE EVEN THOUGH THE ABUSE DID NOT OCCUR ON THE SCHOOL GROUNDS (SECOND DEPT).

The Second Department determined defendant Department of Education's (DOE's) motion for summary judgment in this negligent hiring, training, retention and supervision action was properly denied. The suit alleged sexual abuse of plaintiff-student by a school employee (Denice). Although the abuse did not take place on school premises, it was preceded by inappropriate conduct in the […]

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QUESTIONS OF FACT WHETHER DEFENDANT DRIVER HAD A NONNEGLIGENT EXPLANATION FOR THE REAR-END COLLISION PRECLUDED SUMMARY JUDGMENT IN PLAINTIFF’S FAVOR, PLAINTIFF SUBMITTED A POLICE REPORT WHICH RAISED THE QUESTIONS OF FACT, BY SUBMITTING THE REPORT PLAINTIFF WAIVED ANY OBJECTIONS TO INADMISSIBLE STATEMENTS INCLUDED IN IT (SECOND DEPT).

The Second Department determined questions of fact raised by the police reported precluded summary judgment in plaintiff's favor in this rear-end collision case. Although the police report included inadmissible statements, plaintiff waived any objections by submitting the report with the motion papers: … [T]he plaintiff failed to establish his prima facie entitlement to judgment as […]

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LAW OFFICE FAILURE ALLEGATIONS WERE INSUFFICIENT TO SUPPORT VACATION OF A DEFAULT JUDGMENT (SECOND DEPT).

The Second Department determined the motion to vacate a default judgment was properly denied because the law-office-failure excuse was insufficient: ” 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 potentially meritorious […]

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DEFENDANT’S MOTION TO CANCEL AND DISCHARGE THE MORTGAGE BASED ON THE EXPIRATION OF THE STATUTE OF LIMITATIONS SHOULD HAVE BEEN GRANTED, NO GROUNDS FOR IMPOSING AN EQUITABLE MORTGAGE IN FAVOR OF PLAINTIFF (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant's motion to cancel and discharge the mortgage based upon the expiration of the statute of limitations should have been granted. The court noted that Supreme Court's imposition of an equitable mortgage was improper under the facts: RPAPL 1501(4) provides that “[w]here the period allowed by the applicable […]

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