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Entries by Bruce Freeman

CORRECTION OFFICER’S FALL DOWN A STAIRWAY WAS PROXIMATELY CAUSED BY THE ACT OF AN INMATE, THE RESULTING DISABILITY IS THEREFORE COMPENSABLE (THIRD DEPT).

The Third Department, annulling the hearing officer’s decision, determined that petitioner, a county correction officer, suffered a disability that resulted from the act of an inmate and was therefore compensable: … [W]e find that petitioner has demonstrated that the injuries that he sustained from his fall occurred “contemporaneously with, and flowed directly, naturally and proximately from, […]

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SHOULDER INJURY WHICH OCCURRED WHEN CLAIMANT SCANNED HER PARKING PASS TO ENTER A PARKING GARAGE USED BY EMPLOYEES WAS NOT COMPENSABLE, TWO JUSTICE DISSENT (THIRD DEPT). ​

The Third Department, over a two-justice dissent, affirmed the Workers' Compensation Board's finding that claimant's shoulder injury was not compensable because it did not arise out of and in the course of her employment. Claimant's injury occurred when she scanned her parking pass to enter a parking garage. The garage was not owned by her employer, […]

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NEGLECT FINDING AGAINST MOTHER AND FATHER BASED UPON THE CHILD’S BRUISES NOT SUPPORTED BY THE EVIDENCE (SECOND DEPT).

The Second Department, reversing Family Court, determined that the proof did not support a finding that either parent had neglected the child. Apparently mother's boyfriend had spanked the child and bruising appeared over time. Mother had no reason to suspect her boyfriend would mistreat the child and the parents could not be faulted for not […]

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PARTIES’ CONSENT TO A DNA TEST DID NOT ELIMINATE THE NEED FOR A HEARING TO DETERMINE WHETHER AN ACKNOWLEDGEMENT OF PATERNITY NEARLY 20 YEARS AGO WAS THE PRODUCT OF FRAUD, FAMILY COURT PROPERLY FOUND THAT FRAUD WAS NOT ESTABLISHED (SECOND DEPT).

The Second Department determined the parties' consent to a DNA test did not eliminate the need for a hearing on the vacation of the the acknowledgment of paternity on the basis of fraud: On November 22, 1998, an acknowledgment of paternity was executed with respect to the subject child, which contained the signatures of the mother […]

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LAW OFFICE FAILURE ALLEGATIONS INSUFFICIENT TO WARRANT VACATING A DEFAULT JUDGMENT (SECOND DEPT).

The Second Department determined the law-office-failure allegations were insufficient to warrant vacating a default judgment: While the court has the discretion to accept law office failure as a reasonable excuse (see CPLR 2005…), “[a] party attributing his or her default to a former attorney must provide a detailed and credible explanation of the default. Conclusory and […]

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IN A DISPUTE BETWEEN A HOSPITAL AND A DOCTOR CONCERNING A CHARITABLE GIFT TO THE HOSPITAL, DISQUALIFICATION OF THE DOCTOR’S LAW FIRM WAS PROPER, A LAWYER AT THE FIRM WAS ON THE HOSPITAL’S BOARD OF TRUSTEES (SECOND DEPT).

The Second Department determined the petitioner hospital's motion to disqualify an attorney. The underlying matter concerned a revocable trust related to a charitable gift to the hospital in the amount of $75 million. The oncologist, Williams, who treated the man who made the gift hired a law firm to represent him in the trust proceedings. […]

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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