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Entries by Bruce Freeman

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THE MEANING OF ‘SUBSTANTIAL EVIDENCE’ SUFFICIENT TO SUPPORT A DETERMINATION IN AN ADMINISTRATIVE HEARING EXPLAINED (SECOND DEPT).

The Second Department, in confirming the Commissioner of Public Safety’s termination of General Municipal Law 207-a benefits for an injured firefighter, explained what the term “substantial evidence” means in the context of an administrative hearing: … [A]fter an examination, the respondents’ medical examiner found that the petitioner was capable of returning to light duty and […]

CITY DEMONSTRATED IT DID NOT CREATE, EXACERBATE OR HAVE ACTUAL OR CONSTRUCTIVE NOTICE OF THE BLACK ICE IN THE CROSSWALK WHERE PLAINTIFF SLIPPED AND FELL, DECISION ILLUSTRATES THE LEVEL OF PROOF REQUIRED OF A SLIP AND FALL DEFENDANT TO WIN SUMMARY JUDGMENT (FIRST DEPT).

The First Department determined the defendant city demonstrated that it did not create or have actual or constructive notice of the black ice in the crosswalk where plaintiff slipped and fell. The decision illustrates the level of proof necessary for a defendant’s successful summary judgment motion in a slip and fall case: The City established entitlement to […]

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PETITIONER DEMONSTRATED AN INTELLECTUAL DISABILITY QUALIFYING HER FOR MEDICAID-REIMBURSED HOME AND COMMUNITY BASED SERVICES, CONTRARY FINDING BY THE NYS OFFICE FOR PEOPLE WITH DEVELOPMENTAL DISABILITIES ANNULLED (FIRST DEPT).

The First Department, annulling the determination of the NYS Office for People with Developmental Disabilities, held that the petitioner demonstrated an intellectual disability qualifying her for Medicaid-reimbursed home and community based services: In order to obtain Medicaid-reimbursed home and community based services, an applicant must demonstrate that he or she suffers from a “developmental disability.” […]

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MOTORIZED SCAFFOLD BECAME STUCK AND PLAINTIFF WAS INJURED PUSHING IT FREE, THE INJURY FELL WITHIN THE GRAVITY-RELATED PROTECTIONS OF LABOR LAW 240 (1), PLAINTIFF’S MOTION TO AMEND HIS BILL OF PARTICULARS TO ADD AN ALLEGED VIOLATION OF THE INDUSTRIAL CODE SHOULD HAVE BEEN GRANTED, CRITERIA EXPLAINED (FIRST DEPT).

… [T]he incident in which plaintiff was injured falls within the ambit of Labor Law § 240(1), because the scaffold proved inadequate to shield plaintiff from ” harm directly flowing from the application of the force of gravity to an object or person’” … . The force of gravity caused the scaffold to swing into […]

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PETITIONER, A PRIVATE SCHOOL FOR DEVELOPMENTALLY DISABLED CHILDREN, HAD EXHAUSTED ITS ADMINISTRATIVE REMEDIES IN SEEKING REIMBURSEMENT FROM THE NYC DEPARTMENT OF EDUCATION FOR 24-HOUR CARE FOR A STUDENT WITH AUTISM, MATTER REMITTED WITH INSTRUCTION THAT THE DOCTRINE OF ESTOPPEL, BASED UPON A PROMISE TO REIMBURSE, MAY APPLY (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Manzanet-Daniels, reversing Supreme Court, determined the petitioner, a private residential school for children with intellectual and developmental disabilities (Center for Discovery), had exhausted its administrative remedies in seeking reimbursement from the NYC Department of Education for providing 24-hour care for a student with autism (pursuant to […]

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CLAIMANT, A SUBSTITUTE TEACHER, RECEIVED REASONABLE ASSURANCE OF EMPLOYMENT IN THE FOLLOWING SCHOOL YEAR (LABOR LAW 590), SHE WAS THEREFORE NOT ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT).

The Third Department, reversing the Unemployment Insurance Appeal Board, determined that the New York City Department of Education had demonstrated it had provided claimant, a substitute teacher, with reasonable assurance she would continue to be employed in the following school year. Her application for unemployment insurance benefits over the summer should, therefore, have been denied: … […]

PETITIONER, AN EMPLOYEE OF THE OFFICE FOR PEOPLE WITH DEVELOPMENTAL DISABILITIES, COMMITTED NEGLECT WITHIN THE MEANING OF THE SOCIAL SERVICES LAW WHEN SHE USED THE TERM ‘RETARDED’ IN A CONVERSATION OVERHEARD BY SERVICE RECIPIENTS (THIRD DEPT).

The Third Department determined petitioner, an employee of the Office for People with Developmental Disabilities at the Brooklyn Developmental Disabilities Service Office, “committed acts of neglect [within the meaning of the Social Services Law] when [she] breached [her] duty towards multiple service recipients by failing to use appropriate and professional language in their presence.” Petitioner had used […]

QUESTION OF FACT WHETHER ALLOWING TANDEM RIDING AND SPINNING THE TUBES IN ICY CONDITIONS UNREASONABLY INCREASED THE RISK IN THIS SNOW-TUBING INJURY CASE (THIRD DEPT).

The Third Department determined the defendant’s motion for summary judgment, asserting assumption of the risk, was properly denied in this snow-tubing injury case. Apparently plaintiff went over a berm and collided with a padded pole. There was a triable issue of fact whether allowing plaintiff and her daughters to ride tandem and spinning their tubes, […]

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LETTER WRITTEN BY PETITIONER UPON INVOLUNTARY ADMISSION TO A HOSPITAL SHOULD HAVE BEEN SEEN AS A DEMAND FOR AN EXPEDITED CHALLENGE TO THE CONFINEMENT UNDER THE MENTAL HYGIENE LAW (HABEAS CORPUS), ALTHOUGH THE ISSUE IS MOOT IN THIS CASE, THE ISSUE WAS HEARD ON APPEAL BECAUSE IT IS LIKELY TO RECUR (FIRST DEPT).

The First Department, as an exception to the mootness doctrine, determined a letter written by petitioner should have been interpreted as a demand to contest his involuntary confinement pursuant to the Mental Hygiene Law: In light of petitioner’s release from involuntary confinement pursuant to Mental Hygiene Law (MHL) article 9, this appeal is moot, as […]

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WIFE NOT ENTITLED TO UNSEAL RECORD OF HUSBAND’S ALLEGED ASSAULT AGAINST HER IN THESE DIVORCE PROCEEDINGS, HUSBAND WAS GRANTED AN ADJOURNMENT IN CONTEMPLATION OF DISMISSAL AND DID NOT PLACE THE CRIMINAL MATTER IN ISSUE, THE RECORD WAS SEALED BY OPERATION OF THE CRIMINAL PROCEDURE LAW (THIRD DEPT).

The Third Department determined the wife’s request, in this divorce proceeding, to unseal the record of her husband’s criminal proceedings was properly denied. The husband had been charged with an assault against the wife, and the proceedings terminated favorably to the husband (he was granted an adjournment in contemplation of dismissal). The record was therefore […]

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