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Entries by Bruce Freeman

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BECAUSE PLAINTIFF HAD FILED HIS EMPLOYMENT DISCRIMINATION COMPLAINT WITH THE NYC DIVISION OF HUMAN RIGHTS, HE WAS PRECLUDED UNDER THE ELECTION OF REMEDIES DOCTRINE FROM BRINGING THIS COURT ACTION PURSUANT TO THE NYC HUMAN RIGHTS LAW (SECOND DEPT).

The Second Department determined that because plaintiff had filed his employment discrimination complaint with the NYC Division of Human Rights (Division), he was precluded under the election of remedies doctrine from bringing a court action pursuant to the NYC Human Rights Law (NYCHRL): “Pursuant to the election of remedies doctrine, the filing of a complaint […]

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LEAVE TO FILE LATE NOTICE OF CLAIM AGAINST THE SCHOOL DISTRICT IN THIS NEGLIGENT SUPERVISION ACTION PROPERLY GRANTED, EVEN IF THE EXCUSE FOR FAILURE TO TIMELY FILE WAS NOT REASONABLE, THE SCHOOL DISTRICT WAS NOT PREJUDICED BY THE DELAY (SECOND DEPT).

The Second Department determined that the petition for leave to file a late notice of claim against the school (District) was properly granted. Petitioner had timely filed a notice of claim against the village, and the school was aware of the essential facts of the claim within the 90-day filing period. Petitioner alleged her son, […]

INMATE PETITIONER HAD THE RIGHT TO CALL A PRISON OFFICER AS A WITNESS TO DETERMINE THE BASIS OF THE OFFICER’S KNOWLEDGE THAT PETITIONER POSSESSED A WEAPON, DETERMINATION ANNULLED BASED UPON THE DENIAL OF THAT RIGHT (SECOND DEPT).

The Second Department, annulling the disciplinary determination, held that the inmate-petitioner had the right to call a prison officer as a witness to ascertain the basis for the officer’s knowledge that petitioner possessed a weapon. The petitioner alleged the weapon was placed in the petitioner’s cell by someone else: A prison inmate facing a disciplinary […]

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TWO STATEMENTS FOUND TO BE NONACTIONABLE EXPRESSIONS OF OPINION IN THIS DEFAMATION ACTION, PLAINTIFFS HAVE NO PROOF BURDEN ON A MOTION TO DISMISS, DEFENDANTS NOT SHIELDED BY THE COMMUNICATIONS DECENCY ACT (SECOND DEPT).

The Second Department, modifying Supreme Court, determined two statements alleged by the plaintiffs to have been defamatory were nonactionable opinion (other defamatory statements alleged in the complaint properly survived the motion to dismiss). The court noted that plaintiffs have no burden to prove the allegations in a complaint in response to a motion to dismiss, […]

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DEFENDANT WAS CHARGED WITH ENDANGERING THE WELFARE OF A CHILD BASED ON SEVERAL TYPES OF SEXUAL TOUCHING, BUT NOT KISSING, THE JURY WAS ALLOWED TO CONSIDER KISSING, CONVICTION REVERSED (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined defendant was convicted of endangering the welfare of a child based upon a theory that was not charged in the indictment. The endangering count of the indictment alleged defendant had subjected the victim to several types of sexual touching, but not kissing. The jury was allowed to consider […]

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ALTHOUGH THE MANSLAUGHTER AND NEGLIGENT HOMICIDE CONVICTIONS WHERE SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE IN THIS TRAFFIC ACCIDENT CASE, THOSE CONVICTIONS WERE AGAINST THE WEIGHT OF THE EVIDENCE, THE POLICE OFFICER WAS KILLED BY ANOTHER DRIVER WHO WAS PASSING BY THE ACCIDENT SCENE A SUBSTANTIAL AMOUNT OF TIME AFTER THE DEFENDANT’S ACCIDENT (SECOND DEPT).

The Second Department, reversing the manslaughter and negligent homicide convictions, over a dissent, determined that those convictions, although supported by legally sufficient evidence, were against the weight of the evidence. Defendant, whose blood alcohol level was .12, caused a highway traffic accident. Several drivers stopped and a police officer was at the scene. Another driver, […]

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COURT SHOULD NOT HAVE CONSIDERED AND RULED UPON PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE PROCEEDING AFTER A DEFENDANT DIED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the death of a defendant in this foreclosure action precluded the court from hearing and determining plaintiff’s motion for summary judgment, even with respect to the other defendants: As a general matter, “the death of a party divests a court of jurisdiction to act, and automatically stays proceedings […]

MOTION TO EXTEND TIME TO SERVE DEFENDANT IN THIS MEDICAL MALPRACTICE ACTION PROPERLY GRANTED, EVEN THOUGH STATUTE OF LIMITATIONS HAD EXPIRED (SECOND DEPT).

The Second Department determined plaintiff’s motion to extend the time to serve defendant (Nayak) in this medical malpractice action was properly granted, even though the statute of limitations expired in the interim between filing the summons and complaint and the motion to extend. Plaintiff’s attempt at timely service was found to be defective: The plaintiff’s […]

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RES IPSA LOQUITUR DOCTRINE APPLIES IN THIS ELEVATOR-DOOR INJURY CASE, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined that the defendant’s motion for summary judgment in this elevator-door injury case should not have been granted. The doctrine of res ipsa loquitur applied and the plaintiff presented evidence the elevators doors had been malfunctioning for months: … [P]laintiff was injured when the elevator door in defendant’s building […]

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DEFENDANT DRIVER ADMITTED IN THE ACCIDENT REPORT HE WAS AWARE THE ROADS WERE WET AND SLIPPERY AT THE TIME THE DEFENDANT’S BUS SKIDDED INTO PLAINTIFF’S BUS AFTER HITTING A PUDDLE, PLAINTIFF ALLEGED DEFENDANT DRIVER WAS GOING TOO FAST FOR CONDITIONS, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED, DESPITE DEFENDANT’S DENIAL OF HIS ADMISSION IN HIS AFFIDAVIT OPPOSING THE MOTION (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment in this traffic accident case should have been granted. The plaintiff’s affidavit and the accident report indicated that, after traveling through a puddle of water, the defendant’s bus slid, hit a wall and then rolled into the middle lane, striking plaintiff’s bus.  The […]

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