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Entries by Bruce Freeman

ACTION ALLEGING INJURY FROM A FALLING TREE ON DEFENDANT’S PROPERTY SHOULD HAVE BEEN DISMISSED, DEFENDANT DEMONSTRATED A LACK OF NOTICE OF THE CONDITION OF THE TREE (SECOND DEPT).

The Second Department determined a lawsuit alleging injury from a falling tree on defendant’s property should have been dismissed. Defendant property owner (Alice) demonstrated a lack of notice of the condition of the tree: “In cases involving fallen trees, a property owner will only be held liable if [she or] he knew or should have […]

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NEGLIGENCE ACTION STEMMING FROM AN ALLEGED BREACH OF CONTRACT SHOULD HAVE BEEN DISMISSED, CRITERIA FOR A VALID NEGLIGENCE CAUSE OF ACTION IN THIS CONTEXT EXPLAINED (SECOND DEPT).

The Second Department determined a negligence cause of action, which was based upon a breach of contract allegation, should have been dismissed:  “[A] simple breach of contract is not to be considered a tort unless a legal duty independent of the contract itself has been violated” … . “This legal duty must spring from circumstances […]

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REAR MOST DRIVER RAISED A QUESTION OF FACT ABOUT WHETHER THE DRIVER IN FRONT STOPPED SUDDENLY AND DID NOT SIGNAL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the rear-most driver (plaintiff) in this rear-end collision case raised a question of fact whether defendant stopped suddenly and did not signal: A rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the operator of the rear vehicle, thereby […]

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PLAINTIFF’S EXPERT WITNESS DISCLOSURE SHOULD NOT HAVE BEEN STRUCK AND THE EXPERT SHOULD NOT HAVE BEEN PRECLUDED FROM TESTIFYING ABOUT THE RELEVANT STANDARDS FOR USE OF SLIDES IN SWIMMING POOLS, PLAINTIFF ALLEGEDLY STRUCK HER HEAD ON THE BOTTOM OF THE POOL AFTER SLIDING HEAD FIRST, THE RULING ON THE MOTION IS APPEALABLE BECAUSE IT DEALS WITH THE MERITS AND AFFECTS A SUBSTANTIAL RIGHT (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined that defendants’ motion in limine to strike plaintiff’s expert witness disclosure and preclude the expert from testifying should not have been granted. The court noted that the evidentiary motion was appealable because it involved the merits of this swimming pool injury case and affected a substantial right. The […]

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CLASS ACTION COMPLAINT ON BEHALF OF TENANTS ALLEGING LANDLORDS’ MISHANDLING OF SECURITY DEPOSITS SHOULD NOT HAVE BEEN DISMISSED (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined the complaint adequately pled a class action concerning defendants-landlords’ alleged mishandling of security deposits, including allegations of conversion and co-mingling: … [P]laintiffs adequately alleged all of the prerequisites to class certification… . Plaintiffs alleged that the class of tenants consists of more than 200 members, thereby satisfying […]

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EIGHT YEAR OLD STUDENT MISSED HIS BUS AND WAS ALLEGEDLY TOLD BY A SCHOOL EMPLOYEE TO WALK HOME, THE STUDENT WAS STRUCK BY A CAR ON HIS WAY HOME, THE NEGLIGENT SUPERVISION COMPLAINT AGAINST THE SCHOOL DISTRICT SHOULD NOT HAVE BEEN DISMISSED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined that an action brought by an eight year old student against the school district should not have been dismissed. It was alleged the student missed his bus and was told to walk home (two miles away). The student was hit by a car. The court noted that the […]

PLAINTIFF WAS NOT ENGAGED IN CONSTRUCTION WORK OR IN A CONSTRUCTION AREA WHEN HE WAS INJURED, HE WAS BRINGING IN SUPPLIES WHICH WERE BEING STOCKPILED AND WERE NOT FOR IMMEDIATE USE, THEREFORE THE LABOR LAW 240 (1) AND 241 (6) CAUSES OF ACTION WERE PROPERLY DISMISSED (SECOND DEPT).

The Second Department determined the owner of the building (Sussex) and plaintiff’s employer (Berkoff) were entitled to summary judgment in this Labor Law 240 (1), 241 (6) and 200 action. Plaintiff was injured when he fell bringing in boxes of tile and thin set using a hand truck. Plaintiff was not performing construction work within […]

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DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR FAILURE TO MOVE TO SUPPRESS THE RESULTS OF THE WARRANTLESS SEARCH OF A GARBAGE BAG AND CELL-SITE LOCATION RECORDS WHICH WERE JUSTIFIED BY EXIGENT CIRCUMSTANCES , AND DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR FAILING TO OBJECT TO THE PROSECUTOR’S MISCHARACTERIZATION OF THE STRENGTH OF DNA EVIDENCE (FOURTH DEPT).

The Fourth Department determined the defendant was not deprived of effective assistance of counsel by (1) the failure to move to suppress evidence found in a garbage bag outside defendant’s grandmother’s house, (2) the failure to move to suppress cell site location information (CSLI), and (3) the failure to object to the prosecutor’s mischaracterization of the […]

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TOWN DID NOT VIOLATE THE TOWN CODE OR THE STATE ENVIRONMENTAL QUALITY REVIEW ACT WHEN IT GRANTED A SPECIAL USE PERMIT AND VARIANCES FOR THE CONSTRUCTION OF A CELL TOWER (FOURTH DEPT).

The Fourth Department determined the zoning board of appeals (ZBA) did not violate any provisions of the town code or the State Environmental Quality Review Act when it issued a special use permit and variances allowing the construction of a cell tower (wireless telecommunications facility or WTF): “Where, as here, the zoning ordinance authorizes a use […]

DEFENDANTS DEMONSTRATED THEY DID NOT HAVE NOTICE OF THE DOG’S VICIOUS PROPENSITIES IN THIS DOG-BITE CASE, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this dog-bite case should have been granted. The defendants demonstrated they did not have notice of the dog’s vicious propensities: Aside from the limited exception set forth in Hastings v Sauve (21 NY3d 122, 125-126) regarding a farm animal that strays from the place […]

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