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CROSS EXAMINATION OF PLAINTIFF ABOUT HIS CRIMINAL HISTORY PROPERLY PRECLUDED IN THIS MEDICAL MALPRACTICE ACTION, EXPERT OPINION PROPERLY RELIED UPON HEARSAY STATEMENTS BY PLAINTIFF’S TREATING PHYSICIAN (FOURTH DEPT).

The Fourth Department determined the trial court properly prohibited cross examination of the plaintiff about his criminal history and plaintiff’s expert properly relied upon hearsay statements by plaintiff’s treating physician: … [W]hile a civil litigant is granted broad authority to use the criminal convictions of a witness to impeach the credibility of that witness, the […]

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DEFECT WHICH CAUSED CLAIMANT TO SLIP AND FALL WAS NOT TRIVIAL AS A MATTER OF LAW, QUESTION OF FACT WHETHER DEFENDANT HAD ACTUAL AND CONSTRUCTIVE NOTICE OF THE DEFECT, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing the Court of Claims, determined that the defect which caused the claimant’s slip and fall was not trivial as a matter of law and there were questions of fact about the defendant’s constructive and actual notice of the defect. Claimant is incarcerated and the slip and fall occurred in a walkway […]

PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT IN THIS VEHICLE-PEDESTRIAN ACCIDENT CASE SHOULD HAVE BEEN GRANTED, PLAINTIFFS NEED NOT SHOW THE ABSENCE OF COMPARATIVE NEGLIGENCE (FOURTH DEPT).

The Fourth Department determined plaintiffs’ summary judgment motion in this vehicle-pedestrian accident case should have been granted. Plaintiff demonstrated the driver’s (Gorman’s) negligence and was not required to show the absence of comparative negligence: Plaintiffs commenced this action seeking damages for injuries sustained by Michael Edwards (plaintiff) when he was struck by an ambulance driven […]

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CITY’S DETERMINATION IT WOULD NOT DEFEND A POLICE OFFICER IN A CIVIL ACTION STEMMING FROM THE OFFICER’S STRIKING A CIVILIAN WAS ARBITRARY AND CAPRICIOUS (FOURTH DEPT).

The Fourth Department. over a two-justice dissent, determined the city’s refusal to defend and indemnify a police officer who was sued civilly for striking a civilian was arbitrary and capricious: We respectfully disagree with the view of our dissenting colleagues that a 30-second-long video recording of a portion of the incident, considered in conjunction with the […]

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LOCAL LAWS CONCERNING HEALTH BENEFITS FOR RETIRED TOWN EMPLOYEES WHICH WERE NOT ENACTED BY REFERENDUM ARE ENTIRELY INVALID (FOURTH DEPT). ​

The Fourth Department, in a full-fledged opinion by Justice Troutman, determined local laws concerning health benefits for retired town employees were invalid because they were not enacted by referendum:​ Plaintiffs correctly acknowledge that the modification clauses in the 2009 Law and the 2014 Law run afoul of Municipal Home Rule Law § 23 (2) (f) […]

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 241 (6) CAUSE OF ACTION SHOULD HAVE BEEN GRANTED, DEFENDANT DEMONSTRATED IT WAS NOT AN AGENT OF THE OWNER OR GENERAL CONTRACTOR (FOURTH DEPT).

The Fourth Department determined defendant’s (Pumpcrete’s) motion for summary judgment on the Labor Law 241 (6) cause of action should have been granted, but a question of fact precluded summary judgment in favor of Pumpcrete on the common law negligence cause of action: Plaintiff was injured while guiding a concrete pump hose that was attached […]

QUESTION OF FACT WHETHER SAFETY DEVICES FOR LIFTING HEAVY MOTOR WERE AVAILABLE, PLAINTIFFS’ MOTION OF SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department determined there was a question of fact whether safety devices were available precluded granting plaintiffs’ motion for summary judgment on the Labor Law 240 (1) cause of action. Plaintiff was injured lifting a heavy motor onto a scissor lift. Defendant’s foreman testified he had never manually lifted a motor onto a scissors […]

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BAD FAITH DISCLAIMER ACTION BROUGHT AFTER INJURED PLAINTIFFS WERE ASSIGNED THE INSURED’S RIGHTS UNDER THE POLICY NOT BARRED BY RES JUDICATA, PLAINTIFFS DID NOT HAVE STANDING TO BRING THE BAD FAITH ACTION UNTIL THE RIGHTS WERE ASSIGNED (FOURTH DEPT). ​

The Fourth Department determined plaintiffs’ bad faith action against the insurer was not barred by res judicata. Plaintiffs successfully sued the insured in this accidental shooting case and recovered the policy limits. Plaintiffs then were assigned the insured’s rights against the insurer and sued for the insurer for disclaiming coverage in bad faith. Because plaintiffs […]

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FOURTEEN YEAR OLD CHILD HAD THE STATUTORY RIGHT TO WAIVE HIS PRESENCE AT THE PERMANENCY HEARING AND SHOULD NOT HAVE BEEN ORDERED TO APPEAR, APPEAL HEARD AS AN EXCEPTION TO THE MOOTNESS DOCTRINE (FOURTH DEPT).

The Fourth Department, reversing Family Court, in a full-fledged opinion by Justice Troutman, determined the 14-year-old child had the statutory right to waive his presence at the permanency hearing and the judge should not have ordered his presence. Although the hearing had been held, the appeal was heard under as an exception to the mootness […]

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