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Entries by Bruce Freeman

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DEFENDANT WHICH BUILT THE SWIMMING POOL, DEFENDANT WHICH INSTALLED THE POOL LINER, AND DEFENDANT OWNERS OF THE POOL, WERE NOT ENTITLED TO SUMMARY JUDGMENT IN THIS SWIMMING POOL INJURY CASE, PLAINTIFF WAS INJURED WHEN HE DOVE IN AND STRUCK HIS CHIN IN A SHALLOW AREA (SECOND DEPT).

The Second Department determined defendants' motions for summary judgment in this swimming pool injury case was properly denied. Plaintiff was injured when he dove into the pool allegedly unaware of a shallow area near the deep area. The builder of the pool and the installer of the pool liner (the Bertolino defendants), as well as […]

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JUDGE SHOULD NOT HAVE REFUSED TO SIGN A PROPOSED ORDER TO SHOW CAUSE FOR DEFENDANTS’ MOTION TO VACATE A DEFAULT JUDGMENT IN THIS FORECLOSURE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the order to show cause was proper and the judge should not have refused to sign it. The defendants in this foreclosure action properly sought an order to show cause in their action to vacate the default judgment: The defendants Jacob Hirsch and Blime Hirsch (hereinafter together the […]

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ALTHOUGH SUPREME COURT PROPERLY DEEMED SERVICE COMPLETE DESPITE LATE FILING OF THE AFFIDAVIT OF SERVICE, DEFENDANT’S MOTION TO VACATE THE DEFAULT JUDGMENT SHOULD NOT HAVE BEEN DENIED, RATHER DEFENDANT SHOULD HAVE BEEN GIVEN EXTRA TIME TO FILE AN ANSWER (SECOND DEPT).

The Second Department, reversing Supreme Court, determined Supreme Court properly deemed service complete despite the late filing of the affidavit of service, but further determined Supreme Court should not have denied defendant's motion to vacate the default judgment. Rather service should have been deemed complete when the court ruled on it and defendant should have […]

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EMAILS AND LETTERS WERE NOT DOCUMENTARY EVIDENCE, MOTION TO DISMISS LEGAL MALPRACTICE ACTION PURSUANT TO CPLR 3211 (a)(1) SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant attorneys were not entitled to dismissal of the legal malpractice action based on documentary evidence: A motion pursuant to CPLR 3211(a)(1) to dismiss the complaint on the ground that the action is barred by documentary evidence “may be appropriately granted only where the documentary evidence utterly refutes […]

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HOMEOWNER’S DAUGHTER, AS EXECUTRIX OF DECEDENT HOMEOWNER’S ESTATE, ENTITLED TO HOMEOWNER’S EXEMPTION FROM LIABILITY UNDER LABOR LAW 240 (1) AND 241 (6), BUT DECEDENT’S SON, WHO GAVE WORK INSTRUCTIONS TO THE INJURED PLAINTIFF, WAS NOT ENTITLED TO THE HOMEOWNER’S EXEMPTION AND MAY BE LIABLE AS AN AGENT OF THE OWNER (SECOND DEPT).

The Second Department determined one of decedent homeowner's children, Nina, who was the executrix of decedent's estate, was entitled to dismissal of the Labor Law 240 (1) and 241 (6) causes of action pursuant to the homeowner's exemption, but there was a question of fact whether decedent's son, Stephen, was liable as an agent of […]

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CONDITIONAL ORDER DID NOT MEET THE NOTICE REQUIREMENTS OF CPLR 3216, FORECLOSURE ACTION SHOULD NOT HAVE BEEN ADMINISTRATIVELY DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the conditional order requiring that a note of issue or motion be filed by plaintiff bank within ninety days did not meet the requirements of a notice pursuant to CPLR 3216. Therefore the administrative dismissal of the foreclosure action was invalid: “CPLR 3216 permits a court, on […]

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ORDER FOLLOWING GRANT OF A MOTION TO REARGUE IS APPEALABLE, APPEAL HEARD EVEN THOUGH A PRIOR APPEAL OF THE ORIGINAL ORDER HAD BEEN ABANDONED INSTEAD OF WITHDRAWN, CITY DEMONSTRATED IT DID NOT HAVE WRITTEN NOTICE OF DEFECT IN BICYCLE LANE, NO SPECIAL USE EXCEPTION TO THE PRIOR WRITTEN NOTICE REQUIREMENT (SECOND DEPT).

The Second Department determined Supreme Court had, in effect, granted plaintiff's motion for reargument of his opposition to the city's motion for summary judgment and therefore the related order was appealable. The Second Department further determined it would hear the appeal, even though plaintiff's prior appeal of the original order had been abandoned rather than […]

OWNERS OF A PARCEL OF LAND WHICH ADJOINS A PARCEL RESTRICTED BY A COVENANT TO REMAIN FOREVER WILD DO NOT HAVE STANDING TO ENFORCE THE COVENANT (THIRD DEPT).

The Third Department determined that the plaintiffs, who own land (parcel A) which adjoins land owned by defendant (parcel B), did not have standing to enforce the “forever wild” covenant in the deed to parcel B: The standing issue requires that we determine whether the forever wild restriction is personal or runs with the land […]

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BUSINESS PURSUITS EXCLUSION IN THE HOMEOWNER’S INSURANCE POLICY DID NOT APPLY BECAUSE THE FIRE WOULD HAVE OCCURRED IRRESPECTIVE OF THE OPERATION OF THE BUSINESS, A RESPITE HOME FOR ELDERLY AND SPECIAL NEEDS ADULTS, THREE OF THE RESIDENTS DIED IN THE FIRE STARTED BY CHILDREN PLAYING IN THE GARAGE (THIRD DEPT)

The Third Department determined that an exclusion in defendant-insurer's policy applied and coverage for the death's of three residents of a respite home for the elderly and special needs adults should not have been disclaimed. The respite home was a private residence. The homeowners' son, who was 11, and other children, were playing with a […]

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DECISION TO WITHDRAW LIFE SUPPORT FROM A DEVELOPMENTALLY DISABLED MAN IN A VEGETATIVE STATE PURSUANT TO THE CRITERIA IN SURROGATE’S COURT PROCEDURE ACT 1750-b DID NOT VIOLATE HIS RIGHT TO EQUAL PROTECTION UNDER THE LAW (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Renwick, over a concurring opinion, determined that the decision to allow the withdrawal of life support from an 80-year-old developmentally disabled person (M.G.), who was in a vegetative state, did not violate M.G.'s right to equal protection under the law. Although M.G. had died, the appeal was […]

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