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Entries by Bruce Freeman

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APPLICATION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED, ALTHOUGH THE EXCUSE WAS NOT REASONABLE, THE NOTICE WAS ONLY TWO WEEKS LATE AND THERE WAS NO SHOWING DEFENDANT WAS PREJUDICED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined petitioner’s application for leave to file a late notice of claim in this sidewalk slip and fall case should have been granted. Petitioner’s counsel served a timely notice on the city but the abutting owner was the NYC Housing Authority (NYCHA). The notice was served on the NYCHA […]

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PETITIONER WAS REQUIRED TO FILE A NOTICE OF CLAIM PURSUANT TO CPLR 9802 IN AN ACTION SEEKING A DECLARATORY JUDGMENT THAT A LOCAL LAW WAS INVALID, DECLARATORY JUDGMENT CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined petitioner’s (BT Holdings’) cause of action for a declaratory judgment declaring a local law invalid should have been dismissed because petitioner did not file a notice of claim as required by CPLR 9802: Contrary to BT Holdings’ contention, the notice of claim requirements of CPLR 9802 apply to […]

DEFENDANT SELLER DID NOT DEMONSTRATE PLAINTIFF BUYER COULD NOT BE READY, WILLING AND ABLE TO CLOSE ON THE PROPERTY BY POINTING TO REQUIREMENTS IN THE COMMITMENT LETTER, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS SPECIFIC PERFORMANCE ACTION PROPERLY DENIED (SECOND DEPT).

The Second Department determined the defendant seller did not demonstrate the plaintiff buyer would not have been ready, willing and able to close on the property in this specific performance action. Pointing to the requirements of the plaintiff’s commitment letter was not enough to warrant summary judgment in defendant’s favor: Even when a seller repudiates […]

QUESTION OF FACT WHETHER LADDERS WERE AVAILABLE, PLAINTIFF FELL WHEN AN INVERTED BUCKET HE WAS STANDING ON TIPPED, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS LABOR LAW 240 (1) ACTION PROPERLY DENIED (SECOND DEPT).

The Second Department determined there was a question of fact whether ladders were available at the work site such that plaintiff did not need to stand on an inverted bucket to install sheetrock. Plaintiff was injured when the bucket tipped and he fell: “Under Labor Law § 240(1), owners and general contractors, and their agents, […]

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CONTINUING WRONG DOCTRINE TOLLED THE STATUTE OF LIMITATIONS IN THIS BREACH OF CONTRACT AND BREACH OF WARRANTY OF HABITABILITY ACTION BASED UPON THE ALLEGED FAILURE TO REPAIR DAMAGE TO A COOPERATIVE APARTMENT (SECOND DEPT).

The Second Department, modifying Supreme Court, determined the continuing wrong doctrine operated to toll the statute of limitations in this breach of contract/breach of warranty of habitability action involving damage to plaintiff’s cooperative apartment during a 2004 renovation. Plaintiff alleged the damage had never been repaired and brought his action in 2016. The Second Department […]

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MOTION FOR A CHANGE OF VENUE ON DISCRETIONARY GROUNDS WAS MADE IN THE WRONG COUNTY, ISSUE PROPERLY HEARD ON APPEAL ALTHOUGH NOT RAISED BELOW (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the motion for a change of venue on discretionary grounds was not brought in the correct county and should not have been granted. The issue was properly before the appellate court despite not having been raised below: It is undisputed that, pursuant to CPLR 503(a), venue of the Ulster […]

GENERAL CONTRACTOR DID NOT EXERCISE SUFFICIENT SUPERVISORY CONTROL OVER PLAINTIFF’S WORK TO BE LIABLE UNDER LABOR LAW 200 OR COMMON LAW NEGLIGENCE (SECOND DEPT).

The Second Department determined plaintiff’s knee injury stemming from carrying a heavy beam down stairs was not covered under Labor Law 240 (1). The court further found that defendant general contractor (Talisen) did not exercise sufficient supervisory control over plaintiff’s work to be liable under Labor Law 200 or common law negligence: Labor Law § […]

KNEE INJURY CAUSED BY CARRYING A HEAVY STEEL BEAM DOWN STAIRS IS NOT A COVERED ACCIDENT UNDER LABOR LAW 240 (1) (SECOND DEPT).

The Second Department, modifying Supreme Court, determined plaintiff’s motion for summary judgment on his Labor Law 240 (1) cause of action was properly granted and defendant’s (Premier’s) motion for summary judgment dismissing the Labor Law 240 (1) cause of action should have been granted. Plaintiff injured his knee carrying a heavy steel beam down some […]

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