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Entries by Bruce Freeman

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CONSTRUCTION CONTRACT REQUIRING INSURANCE WILL NOT BE INTERPRETED TO REQUIRE ADDITIONAL INSURED COVERAGE ABSENT A SPECIFIC PROVISION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the causes of action alleging that parties should have been named as additional insureds in this Labor Law 200 and 241 (6) action should have been dismissed. Contracts which call for the procurement of insurance do not, without specific provisions, require parties to be named as additional […]

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CITY WAS NOT ESTOPPED FROM ASSERTING THE STATUTE OF LIMITATIONS DEFENSE TO A CHALLENGE TO CITY WATER BILLS, ALTHOUGH AN INACCURATE BILL HAD BEEN ISSUED, THE ERROR WAS CORRECTED AND THE CITY DID NOT ACT IMPROPERLY (SECOND DEPT).

The Second Department determined petitioner's challenge to the city water bills was properly deemed time-barred. Petitioner argued that the city should be estopped from taking advantage of the four-year statute because of a delay in correcting an inaccurate bill: The petitioner's contention that DEP and the Water Board should be estopped from applying the four-year […]

RELATION BACK DOCTRINE SHOULD HAVE BEEN APPLIED IN THE LABOR LAW 200 AND 241 (6) ACTION TO ALLOW PLAINTIFF TO ADD A PARTY AFTER THE STATUTE OF LIMITATIONS HAD RUN (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the relation-back doctrine should have been applied to allow plaintiff to add a party to the Labor Law 200 and 241 (6) complaint after the statute of limitations had run: On October 15, 2007, the plaintiff, a construction worker, allegedly was injured while performing demolition work on the […]

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MOTHER’S PETITION FOR GUARDIANSHIP RE: SEEKING SPECIAL IMMIGRANT JUVENILE STATUS FOR HER SON SHOULD NOT HAVE BEEN DISMISSED ON THE GROUND PATERNITY HAD NOT BEEN ESTABLISHED (SECOND DEPT).

The Second Department, reversing Family Court, determined mother's guardianship petition should not have been dismissed simply because paternity had not been established. Mother was seeking special immigrant juvenile status (SIJS) for her child: … [M]other filed a petition … to be appointed the guardian of the subject child for the purpose of obtaining an order, […]

CONTRACT PROVISION ABOUT ALLOWED USES OF THE DIOCESE’S PROPERTY BY A CATHOLIC SCHOOL WAS AMBIGUOUS, DIOCESE’S SUMMARY JUDGMENT MOTION SEEKING DAMAGES FOR BREACH SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined a contract provision about the use of property by a Catholic school (CTK) was ambiguous about other allowed uses (daycare, charter school, etc.) and therefore the plaintiff's (the Diocese's) motion for summary judgment should not have been granted: It cannot be said that the language of the 1976 […]

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STUDENT WAS NOT DEPRIVED OF HIS RIGHT TO HAVE AN ATTORNEY PRESENT AT A COLLEGE DISCIPLINARY HEARING BY THE COLLEGE’S REFUSAL TO ADJOURN THE MATTER FOR THREE HOURS SO THE ATTORNEY COULD ATTEND, STUDENT WAS PROPERLY FOUND RESPONSIBLE FOR THE DISCIPLINARY CHARGES AND WAS PROPERLY EXPELLED (SECOND DEPT).

The Second Department, over a two-justice dissent, determined the student-petitioner's due process rights were not violated when the state college (SUNY Purchase] refused to adjourn a disciplinary hearing because petitioner's attorney could not be present. Petitioner was accused of having sex with another student without her consent. After the hearing the petitioner was found responsible and […]

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HEARSAY IN POLICE REPORT ABOUT THE PROXIMATE CAUSE OF THE TRAFFIC ACCIDENT WAS INADMISSIBLE, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT)

The Second Department, reversing Supreme Court, determined there was a question of fact about whether defendant's (RB Juice's] truck was a proximate cause of the vehicle accident which injured plaintiff. Although the police report indicated the truck was not a proximate cause, the officer did not witness the collision and therefore the officer's conclusions were […]

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ABUTTING PROPERTY OWNERS AND CITY NOT LIABLE FOR A LAMP POST BASE IN THE SIDEWALK OVER WHICH PLAINTIFF ALLEGEDLY TRIPPED, THERE WAS, HOWEVER, A QUESTION OF FACT WHETHER CON ED INSTALLED THE BASE AND WAS THEREFORE LIABLE (SECOND DEPT).

The Second Department determined the abutting property owners (Lomangino and Joro) and the city were entitled to summary judgment in this sidewalk slip and fall case. The raised concrete with bolts coming out of it, over which plaintiff allegedly tripped, was the base of a lamp post which was never replaced. The object was not […]

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STATUTE OF LIMITATIONS DEFENSE WAS WAIVED BECAUSE IT WAS NOT RAISED IN AN ANSWER OR A PRE-ANSWER MOTION TO DISMISS IN THIS FORECLOSURE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, in this foreclosure action, noted that the statute limitations defense is waived if not raised in an answer or a pre-answer motion to dismiss: In July 2014, the plaintiff commenced this mortgage foreclosure action against, among others, the defendant Anthony Palazzotto. Palazzotto defaulted in answering or appearing, and the […]

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