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Entries by Bruce Freeman

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CITY NOT LIABLE FOR SLIP AND FALL IN CROSSWALK DURING STORM, ALLEGED FAILURE TO COMPLY WITH SNOW REMOVAL PROTOCOLS AND FAILURE TO APPLY SALT BEFORE THE STORM ARE NOT GROUNDS FOR LIABILITY (FIRST DEPT).

The First Department determined the city could not be held liable for a slip and fall in a crosswalk while a storm was in progress: The certified expert report [plaintiff] submitted does not address how the City created or exacerbated the icy condition of the crosswalk and only states that it was created during the heavy […]

DRAINAGE GRATE NEAR SOCCER FIELD DEEMED OPEN AND OBVIOUS, PLAINTIFF SOCCER PLAYER ASSUMED THE RISK OF INJURY RESULTING FROM HIS CLEAT GETTING STUCK IN THE GRATE (SECOND DEPT).

The Second Department determined plaintiff soccer player had assumed the risk of injury resulting from a cleat on his shoe getting stuck in a drainage grate near the soccer field. The drainage grate was deemed open and obvious: “Pursuant to the doctrine of primary assumption of risk, a voluntary participant in a sporting or recreational […]

DEFENDANT RESTAURANT-BAR DEMONSTRATED ITS EMPLOYEE DID NOT KNOW THE DRIVER WAS UNDER 21, RESTAURANT-BAR ENTITLED TO SUMMARY JUDGMENT IN THIS DRAM SHOP ACT ACTION (SECOND DEPT).

The Second Department determined the restaurant/bar’s (Hacienda’s) motion for summary judgment in this Dram Shop Act action was properly granted. Plaintiff, a passenger in a car driven by Behler, was injured when the driver struck a guardrail. The driver, who was under 21, had been served alcohol at Hacienda. General Obligations Law (GOL) 11-101 (the […]

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ARBITRATOR’S RULING WAS IRRATIONAL AND VIOLATED CPLR 1209 IN THIS NO-FAULT INSURANCE ACTION, HEALTH CARE PROVIDER, AS AN ASSIGNEE, WAS ENTITLED TO ARBITRATE ITS CLAIM FOR CARE PROVIDED TO THE INJURED INFANT (SECOND DEPT).

The Second Department determined the arbitrator’s award was irrational and violated CPLR 1209 in this no-fault insurance action. The injured child and his mother had assigned their rights to payment for health care services to the petitioner, Fast Care. Contrary to the arbitrator’s finding, arbitration was not sought by the injured child, which would have […]

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FAMILY COURT DIVESTED OF SUBJECT MATTER JURISDICTION IN THIS GUARDIANSHIP PROCEEDING BECAUSE THE CHILD TURNED 21, MOTION FOR FINDINGS ALLOWING THE CHILD TO APPLY FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) RENDERED ACADEMIC (FIRST DEPT).

The Second Department, dismissing the appeal as academic, determined Family Court was divested of subject matter jurisdiction in this guardianship proceeding because the child had turned 21. Mother had sought appointment as guardian in an effort to procure special immigrant juvenile status (SIJS) for the child: “Generally, courts are precluded from considering questions which, although […]

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EDUCATION LAW REQUIRES THAT PLAINTIFF FILE A NOTICE OF CLAIM AS A CONDITION PRECEDENT FOR AN ACTION AGAINST THE NYC DEPARTMENT OF EDUCATION ALLEGING A VIOLATION OF THE NYS HUMAN RIGHTS LAW (SECOND DEPT)

The Second Department determined plaintiff was required, pursuant to the Education Law, to file a notice of claim in an action alleging a violation of the NYS Human Rights Law: Contrary to the plaintiff’s contention, since her complaint seeks both equitable relief and the recovery of damages, the filing of a notice of claim within […]

STATEMENTS POSTED ON FACEBOOK CONCERNING PLAINTIFF’S UNAUTHORIZED PARTIAL DEMOLITION OF A LANDMARK BUILDING WERE DEEMED NON-ACTIONABLE OPINION AND HYPERBOLE (SECOND DEPT).

The Second Department determined that defendant’s Facebook posts were non-actionable opinion in this defamation action. Defendant, without obtaining the required certificate, had begun to demolish a building which had been designated a landmark. Defendant posted pictures of the building with comments that the demolition was a crime, that the plaintiff was a vampire, and that plaintiff, […]

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DENIAL OF A PETITION TO MODIFY A SEX OFFENDER REGISTRATION ACT (SORA) RISK ASSESSMENT IS APPEALABLE AS OF RIGHT, PETITION PROPERLY DENIED (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Rivera, considering a question of first impression, determined a defendant can appeal, as of right, the denial of a petition to modify a Sex Offender Registration Act (SORA) risk classification. The Second Department further held that the petition was properly denied, in large part because defendant, […]

DEFENDANT WHO HAD APPEARED IN THE ACTION BUT HAD SINCE MOVED TO SOUTH CAROLINA COULD BE COMPELLED TO APPEAR AT TRIAL BY A SUBPOENA MAILED TO HIS NEW YORK ATTORNEY (FIRST DEPT).

The Second Department determined a trial subpoena issued to a defendant in a medical malpractice action compelled defendant’s attendance despite his having moved to South Carolina: … [T]he plaintiffs mailed a subpoena to the office of the defendant’s attorneys, located in Mineola, New York. The subpoena commanded the defendant to appear at the trial of […]

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PLAINTIFF’S DECEDENT WAS KILLED IN A MOTORCYCLE ACCIDENT DURING RECREATIONAL USE OF A CITY PARKING LOT, CITY NOT LIABLE PURSUANT TO THE GENERAL OBLIGATIONS LAW (FIRST DEPT).

The First Department, reversing Supreme Court, determined the city could not be held liable for a “trespass activity” motorcycle accident in the parking lot at Yankee Stadium. Trespassers have used the parking for motorcycles, dirt bikes and all-terrain vehicles for recreation for years. Plaintiff’s decedent was killed in a collision in the parking lot. Under […]

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