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Entries by Bruce Freeman

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ALTHOUGH DEFENDANT DID NOT, UNDER THE ADMINISTRATIVE CODE, HAVE A DUTY TO REMOVE ICE AND SNOW FROM THE AREA OF THE SLIP AND FALL, SINCE DEFENDANT UNDERTOOK TO DO SO IT MUST DEMONSTRATE IT DID NOT CREATE OR EXACERBATE THE DANGEROUS CONDITION TO BE ENTITLED TO SUMMARY JUDGMENT (FIRST DEPT).

The First Department determined defendant’s motion for summary judgment in this ice and snow slip and fall case was properly denied. Although the defendant, under the administrative code of NYC, did not have a duty to remove ice and snow from the site of the fall, it did undertake to do so. Therefore, to be […]

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PLAINTIFF PHYSICIAN SUFFICIENTLY ALLEGED HE WAS TERMINATED IN VIOLATION OF LABOR LAW 741, PLAINTIFF EXPRESSED HIS DISAGREEMENT WITH DEFENDANT HOSPITAL CORPORATION’S POLICY THAT THE RESIDENTIAL DRINKING WATER OF PATIENTS DIAGNOSED WITH LEGIONNAIRE’S DISEASE SHOULD NOT BE TESTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff physician’s complaint alleging he was terminated in retaliation for his disagreement with defendant hospital corporation’s policy concerning the testing of residential drinking water for patients diagnosed with Legionnaire’s disease stated a cause of action pursuant to Labor Law 741: [Plaintiff] disagrees with the public position taken by the […]

SUPREME COURT SHOULD HAVE PLACED DEFENDANT IN A JUDICIAL DIVERSION PROGRAM IN THIS COCAINE-SALE CASE, CRITERIA AND PURPOSE EXPLAINED (FIRST DEPT).

The First Department determined Supreme Court should have placed defendant in a judicial diversion program in this cocaine-sale case. Defendant’s need for money to support his marijuana use qualified him for diversion, despite his prior completion of a drug treatment program: The court improvidently exercised its discretion in denying defendant’s request to participate in the […]

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DEFENDANT CANADIAN INSURANCE COMPANY’S TIES TO NEW YORK WERE NOT SUFFICIENT TO ALLOW THE EXERCISE OF LONG-ARM JURISDICTION OVER THE COMPANY (FIRST DEPT).

The First Department determined defendant insurance company’s connections to New York were insufficient to support long-arm jurisdiction: [D]efendant … is incorporated in Canada, has its principal place of business in Canada, and is not authorized to do business in New York. Defendant issued a $10 million life insurance policy to a trust, designated on the […]

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ALTHOUGH THE DEFENDANT NEW YORK COMPANY IS A WHOLLY OWNED SUBSIDIARY OF AN ISRAELI COMPANY, THE TWO ENTITIES OPERATED INDEPENDENTLY SUCH THAT NEW YORK COULD NOT EXERCISE JURISDICTION OVER THE ISRAELI COMPANY, A QUALIFIED PRIVILEGE RE DEFAMATORY REMARKS ALLEGEDLY MADE BY DEFENDANT DOES NOT INSULATE THE DEFENDANT FROM A CAUSE OF ACTION BASED UPON BREACH OF A CONTRACTUAL NON-DISPARAGEMENT CLAUSE (FIRST DEPT).

The First Department found that a defendant company, IAI, which operates in Israel, was not subject to personal jurisdiction in New York under the theory that defendant IAINA, which operates in New York, was a department of IAI. The court explained the relevant criteria. The court further held that a common interest privilege (with respect […]

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ALTHOUGH DEFENDANT FOREIGN CORPORATION DID NOT HAVE AN OFFICE IN NEW YORK COUNTY, IT HAD DESIGNATED NEW YORK COUNTY AS ITS PLACE OF BUSINESS IN ITS FILING WITH THE SECRETARY OF STATE, MOTION TO CHANGE VENUE SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendants’ motion to change venue should not have been granted. Although defendant foreign corporation did not have a place of business in New York County, it had designated New York County as the location of its business in its filing with the Secretary of State: Wakefern, a foreign […]

ESSENTIAL EVIDENCE SUBMITTED IN REPLY PAPERS PROPERLY CONSIDERED BECAUSE A SURREPLY WAS ALLOWED (FIRST DEPT).

The First Department noted that essential evidence in reply papers was properly considered by the court because a surreply was allowed:  … [T]o support amending a personal injury complaint to add a cause of action for wrongful death, plaintiffs were required to submit “competent medical proof of the causal connection between the alleged malpractice and […]

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AFTER A SPECTATOR ALERTED THE COURT JURORS HAD BEEN OVERHEARD REFERRING TO THE DEFENDANT IN DEROGATORY TERMS THE TRIAL JUDGE QUESTIONED THE SPECTATOR BUT TOOK NO FURTHER ACTION, MATTER REMITTED TO THE APPELLATE DIVISION FOR A DETERMINATION WHETHER THE TRIAL JUDGE’S ASSESSMENT OF THE CREDIBILITY OF THE SPECTATOR WAS SUPPORTED BY THE WEIGHT OF THE EVIDENCE (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, over a concurring opinion and a dissenting opinion, reversed the Appellate Division and sent the matter back to the Appellate Division for a factual determination whether the trial judge’s credibility assessment of a spectator who claimed to have overheard jurors speaking about the defendant in derogatory […]

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EVIDENTIARY RULING BY A TRIAL JUDGE WAS NOT THE LAW OF THE CASE AND WAS PROPERLY RECONSIDERED PRIOR TO TRIAL BY A NEW TRIAL JUDGE, STATEMENT HEARD IN THE BACKGROUND OF A 911 CALL IDENTIFYING DEFENDANT AS THE SHOOTER SHOULD NOT HAVE BEEN ADMITTED AS AN EXCITED UTTERANCE, NO EVIDENCE THE DECLARANT SAW THE SHOOTING (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Wilson, over a concurring opinion, reversing defendant’s conviction, determined that a statement heard in the background of a 911 call should not have been admitted as an excited utterance. The statement ostensibly identified the defendant as the man who had just shot three people. Other than […]

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