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Entries by Bruce Freeman

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STATUTE OF LIMITATIONS FOR COMMENCING AN ACTION AGAINST THE MUNICIPALITY TOLLED WHEN PLAINTIFF MOVED FOR LEAVE TO FILE A LATE NOTICE OF CLAIM (THIRD DEPT).

The Third Department, reversing Supreme Court, determined plaintiff’s action against the municipality was timely commenced. The one-year-and-ninety-day statute of limitations was tolled when plaintiff filed a successful motion for leave to file a late notice of claim: Pursuant to General Municipal Law, a plaintiff must first serve a notice of claim against a municipality within […]

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PLAINTIFFS DID NOT DEMONSTRATE A SPECIAL RELATIONSHIP WITH THE TOWN, TOWN WAS NOT LIABLE FOR FLOODING CAUSED BY LANDSLIDE (THIRD DEPT).

The Third Department, reversing Supreme Court, determined there was no special relationship between the town and the plaintiffs. The town had allowed fill to be dumped near a stream (Normanskill) by issuing a permit to the property owner, 165 Salisbury Road LLC. A landslide occurred which caused flooding on plaintiffs’ property: To establish that a […]

TWO TO THREE FOOT FALL OF HEAVY STEEL PLATE WHICH WAS BEING HOISTED IS COVERED UNDER LABOR LAW 240 (1), HEIGHT DIFFERENTIAL NOT DE MINIMUS (FIRST DEPT).

The First Department determined the two to three foot fall of a heavy steel plate that was being hoisted was covered by Labor Law 240 (1): Plaintiff was injured when the nylon sling attaching a one-to-two ton steel plate to an excavator snapped, causing the heavy plate to fall to the ground, bounce, and sever […]

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DATE OF LOSS DEEMED TO BE DATE THE CLAIM FOR A STOLEN CAR WAS DENIED, NOT THE DATE THE CAR WAS STOLEN (THIRD DEPT).

The Third Department, reversing Supreme Court, determined that the term “date of loss” in the policy referred to the date the insurer disclaimed coverage, not the date the car was stolen. Therefore plaintiff’s action for breach of contract was timely. The contract properly shortened the applicable statute of limitations to one year: In our view, […]

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CHILD’S OUT OF COURT STATEMENTS ABOUT ABUSE BY STEPFATHER SUFFICIENTLY CORROBORATED (THIRD DEPT).

The Third Department, in a custody proceeding, determined out of court statements by a child about abuse by the stepfather were properly deemed admissible because they were sufficiently corroborated: … [T]he older child’s out-of-court statements concerning the sexual abuse perpetrated upon her by the stepfather did not constitute impermissible hearsay. Where, as here, a child’s out-of-court […]

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MOTHER DEMONSTRATED FATHER WILLFULLY VIOLATED THE SEPARATION AGREEMENT AND WAS THEREFORE ENTITLED TO ATTORNEY’S FEES (THIRD DEPT). ​

The Third Department, reversing Family Court, determined mother had demonstrated that father’s violation of the separation agreement was willful, entitling mother to attorney’s fees: Family Court’s determination that the mother failed to prove a willful violation is not supported by the record or the law. The mother’s testimonial and documentary submissions were amply sufficient to […]

SUSPENDED JUDGMENT COMMITTING RESPONDENT TO JAIL FOR FAILURE TO MAKE CHILD SUPPORT PAYMENTS SHOULD NOT HAVE BEEN REVOKED WITHOUT A HEARING (THIRD DEPT).

The Third Department, reversing Family Court, determined a suspended judgment should not have been revoked without a hearing: … [R]espondent consented to an order confirming the Support Magistrate’s finding that he willfully violated his child support obligation. Family Court suspended judgment on the condition that respondent make certain minimum payments. After respondent failed to make […]

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PROVISION OF THE EDUCATION LAW WHICH ALLOWS THE APPOINTMENT OF A RECEIVER TO TAKE OVER ALLEGEDLY FAILING SCHOOLS DOES NOT VIOLATE THE CONTRACT CLAUSE OF THE US CONSTITUTION (THIRD DEPT).

The Third Department, in a complex decision not fully summarized here, determined the provision of the Education Law which allows the appointment of a receiver to take over allegedly failing schools does not violate the Contract Clause of the US Constitution: … [W]here a statute or regulation impairs a private contract, courts will defer to […]

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DEFAMATION AND MALICIOUS PROSECUTION CAUSES OF ACTION SHOULD NOT HAVE BEEN DISMISSED, ELEMENTS EXPLAINED (THIRD DEPT). ​

The Third Department, reversing Supreme Court, determined plaintiff had stated causes of action for malicious prosecution and defamation   Defendant, Goyer, was the town deputy clerk and plaintiff was the town supervisor.  Goyer had filed a harassment complaint against plaintiff alleging he physically prevented her from entering a conference room at the town hall. Plaintiff was […]

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