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Entries by Bruce Freeman

PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) AND 241 (6) CAUSES OF ACTION SHOULD HAVE BEEN GRANTED, PLAINTIFF FELL OFF THE BACK OF A FLATBED TRUCK AS STEEL BEAMS WERE BEING HOISTED FROM THE TRUCK (FIRST DEPT).

The First Department, reversing Supreme Court, determined that plaintiff’s motion for summary judgment on his Labor Law 240 (1) and 241 (6) causes of action should have been granted. Plaintiff fell off a flatbed truck as steel beams were being hoisted from the truck: Plaintiff established that the accident was proximately caused by defendants’ failure to provide […]

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DEFENDANT DEMONSTRATED THE ABSENCE OF ACTUAL OR CONSTRUCTIVE NOTICE OF THE ALLEGEDLY SLIPPERY CONDITION IN THIS SLIP AND FALL CASE (FIRST DEPT).

The Second Department determined defendant demonstrated the absence of actual or constructive notice of the allegedly slippery condition on the staircase in this slip and fall case: Defendant established its entitlement to judgment as a matter of law by establishing that it did not have actual or constructive notice of the urine on the staircase […]

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LOST PENSION BENEFITS AS DAMAGES IN THIS SEXUAL HARASSMENT CASE WERE PROPERLY CALCULATED USING THE TOTAL OFFSET METHOD (THIRD DEPT).

The Third Department, in a matter of first impression, determined the damages award for loss of Seabury’s pension benefits in this sexual harassment case was properly calculated using the “total offset” method: We … reject petitioner’s contention that SDHR [State Division of Human Rights] erred by failing to reduce the damages awarded for loss of pension […]

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APPELLATE COURT EXERCISED ITS POWER TO REDUCE A SENTENCE EVEN THOUGH THE SENTENCING COURT DID NOT ABUSE ITS DISCRETION, NOTING EXTRAORDINARY CIRCUMSTANCES (THIRD DEPT).

The Third Department exercised its power to reduce a sentence in the absence of an abuse of discretion by the sentencing judge. In the midst of difficult divorce proceedings defendant deposited a check made out to her and her husband. The evidence demonstrated the husband’s signature was forged and defendant was convicted of criminal possession […]

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DEFENSE COUNSEL WAS INEFFECTIVE IN FAILING TO REQUEST A FRYE HEARING CONCERNING A COMPUTER PROGRAM USED TO INTERPRET MIXED DNA SAMPLES, APPEAL HELD IN ABEYANCE AND MATTER REMITTED FOR A HEARING (THIRD DEPT).

The Third Department determined defense counsel was ineffective in failing to request a Frye hearing concerning a computer program, the TrueAllele Caaswork system, used to interpret mixed DNA samples. The appeal was held in abeyance and the matter remitted for the hearing: ​Defendant asserts that his trial counsel should have challenged, by way of a Frye hearing, […]

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ATTORNEYS FOR THE EXECUTOR OF THE ESTATE IN A REMOVAL PROCEEDING SHOULD NOT HAVE BEEN DISQUALIFIED BASED UPON THEIR PRIOR REPRESENTATION OF DECEDENT’S WIFE FOR HER ESTATE PLANNING (SECOND DEPT).

The Second Department, reversing Surrogate’s Court, determined the law firm representing the executor and trustee of the estate in a removal proceeding should not have been disqualified based upon the firm’s prior representation of the decedent’s wife, Sandra, for Sandra’s estate planning: ” A party seeking disqualification of it[s] adversary’s counsel based on counsel’s purported prior […]

SUPREME COURT SHOULD NOT HAVE REVERSED THE ZONING BOARD OF APPEALS AND GRANTED THE PETITION FOR A VARIANCE TO CONSTRUCT AN IN-LAW APARTMENT, COURT’S LIMITED REVIEW POWERS EXPLAINED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the petition for a variance to allow construction of an in-law apartment should not have been granted: To obtain a use variance, an applicant must demonstrate to the zoning board of appeals that “applicable zoning regulations and restrictions have caused unnecessary hardship” (Village Law § 7-712-b[2][b]). This […]

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BECAUSE THE DETERMINATION THAT THE PROPOSED CONSTRUCTION WAS ZONING COMPLIANT WAS NEVER FILED THE 30-DAY APPEAL PERIOD NEVER RAN, BECAUSE A NOTICED HEARING WAS NEVER HELD THE APPROVAL OF THE CONSTRUCTION WAS JURISDICTIONALLY DEFECTIVE (SECOND DEPT).

The Second Department determined Supreme Court properly granted summary judgment in favor of plaintiff property owners who sought to contest the approval of the construction of condominiums near their properties. Because the approval of the project was never filed within the meaning of the Village Code, the 30-day period for appeal never began to run […]

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COVENANT NOT TO COMPETE WHICH EFFECTIVELY PRECLUDED DEFENDANT SURGEON FROM PRACTICING MEDICINE IN METROPOLITAN NEW YORK WAS INVALIDATED, ARGUMENT FOR PARTIAL ENFORCEMENT REJECTED, CRITERIA EXPLAINED (SECOND DEPT).

The Second Department determined a covenant not to compete which prohibited defendant surgeon from practicing within a ten-mile radius of his former employer was unreasonable and was properly invalidated. The argument that the covenant should be partially enforced was rejected as well: “Agreements restricting an individual’s right to work or compete are not favored and […]

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PLAINTIFF WAS NOT ENTITLED TO PREJUDGMENT INTEREST IN THIS BREACH OF CONTRACT ACTION BECAUSE PLAINTIFF FAILED TO DEMONSTRATE WHEN THE DAMAGES WERE INCURRED (SECOND DEPT).

n a breach of contract action too complex to fairly summarize here, the Second Department determined plaintiff was not entitled to prejudgment interest pursuant to CPLR 5001 (a) because plaintiff did not demonstrate when the damages were incurred: We agree with the Supreme Court’s determination that the plaintiff was not entitled to prejudgment interest. CPLR […]

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