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Entries by Bruce Freeman

MOTION TO EXTEND THE TIME TO SERVE THE SUMMONS AND COMPLAINT PROPERLY GRANTED, DIFFERENCE BETWEEN ‘GOOD CAUSE’ AND ‘INTEREST OF JUSTICE’ CRITERIA EXPLAINED (SECOND DEPT).

The Second Department determined plaintiff’s cross motion to extend the time to serve the summons and complaint was properly granted. Defendant doctor had retired and was no longer working at the place of business where the medical malpractice summons and complaint was served: … [A]n attempt at service that later proves defective cannot be the basis […]

PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION, MAKESHIFT LADDER SLID OUT FROM UNDER HIM (FIRST DEPT).

The First Department determined plaintiff was entitled to summary judgment on his Labor Law 240 (1) cause of action. Plaintiff alleged a makeshift ladder slid out from under him. A co-worker’s statement that plaintiff may have missed the last step did not refute plaintiff’s statement that the ladder slid out from under him: Plaintiff made […]

QUESTION OF FACT WHETHER GENERAL CONTRACTOR LIABLE UNDER LABOR LAW 240 (1) FOR PLAINTIFF’S FALL FROM A LADDER BASED ON CONTRACTUAL SAFETY RESPONSIBILITIES, AND QUESTION OF FACT WHETHER A SUBCONTRACTOR IS LIABLE AS A STATUTORY AGENT OF THE OWNER (FIRST DEPT).

The First Department, modifying Supreme Court, determined there was a question of fact (1) whether one defendant, the general contractor Russco, could be liable under Labor Law 240 (1) for plaintiff’s fall from a ladder based upon contractual safety responsibilities, and (2) whether another defendant, Ruggles, could be liable under Labor Law 240 (1) as a statutory […]

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DAMAGES AWARD IN A NEGLIGENCE SUIT BROUGHT BY A POLICE OFFICER RECEIVING ACCIDENTAL RETIREMENT DISABILITY BENEFITS MUST BE OFFSET BY THOSE BENEFITS AS A COLLATERAL SOURCE PURSUANT TO CPLR 4545 (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Rivera, over a two-judge dissent, determined that a damages award in a negligence suit brought by a police officer receiving accident disability retirement (ADR) benefits must be offset by those benefits as a collateral source pursuant to CPLR 4545: The … question presented … is […]

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BRIEF QUESTIONING OF THE DEFENDANT ON A REPRESENTED MATTER WAS SEPARABLE AS A MATTER OF LAW FROM THE QUESTIONING ON AN UNREPRESENTED MATTER (CT APP).

In a brief memorandum, reversing the Appellate Division, the Court of Appeals determined brief questioning of defendant on a matter on which defendant was represented by counsel was separable as a matter of law from the interrogation on an unrepresented matter. There was no discussion of the facts of the case: … [T]he impermissible questioning […]

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ALTHOUGH DEFENDANT WAS REPRESENTED ON A MARIJUANA CHARGE, QUESTIONING ABOUT AN UNRELATED MURDER DID NOT VIOLATE DEFENDANT’S RIGHT TO COUNSEL, APPELLATE DIVISION SHOULD NOT HAVE SUPPRESSED DEFENDANT’S STATEMENT ABOUT THE MURDER (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Wilson, reversing the Appellate Division, determined defendant’s right to counsel was not violated when he was questioned about a murder while he was represented on an unrelated marijuana charge. Defendant was stopped for traffic violations and arrested when marijuana was found in the car he was […]

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NEW YORK’S BORROWING STATUTE APPLIED TO THE CONTRACT WITH A CANADIAN COMPANY WHICH CALLED FOR THE CONTRACT TO BE ‘ENFORCED’ ACCORDING TO NEW YORK LAW, ONTARIO’S TWO-YEAR STATUTE OF LIMITATIONS RENDERED THE ACTION UNTIMELY (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Fahey, determined New York’s borrowing statute, CPLR 202, applied to a contract with a Canadian company in which the parties agreed the contract would be “enforced” according to New York law. The borrowing statute required that Ontario’s two-year statute of limitations controlled and the action was […]

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THE MARTIN ACT CLAIMS IN THIS DECEPTIVE PRACTICES ACTION INVOLVING RESIDENTIAL MORTGAGE BACKED SECURITIES ARE TIME-BARRED UNDER THE THREE-YEAR STATUTE OF LIMITATIONS FOR STATUTORY VIOLATIONS, BUT THE EXECUTIVE LAW CLAIMS MAY NOT BE TIME-BARRED IF THEY ARE BASED SOLELY ON THE ELEMENTS OF COMMON LAW FRAUD SUBJECT TO THE SIX-YEAR STATUTE OF LIMITATIONS (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, over an extensive two-judge concurring opinion and an extensive dissent, determined that some of the claims in this deceptive-practices/fraud action involving residential mortgage backed securities may not be time-barred. The Appellate Division had held both the General Business Law (Martin Act) and Executive Law claims […]

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QUESTION OF FACT WHETHER SNOW PLOW DRIVER ACTED WITH RECKLESS DISREGARD IN THIS TRAFFIC ACCIDENT CASE, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this snow plow traffic accident case should not have been granted. The snow plow driver was backing up below the crest of a hill and plaintiff was unable to brake in time when he crested the hill. The Fourth Department held that […]

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