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Entries by Bruce Freeman

DOCUMENT ALLOWING ACCESS TO PLAINTIFF’S LAND OVER DEFENDANT’S LAND DID NOT INCLUDE ANY WORDS OF PERMANENCY, THE DOCUMENT CREATED A REVOCABLE LICENSE NOT AN EASEMENT (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the filed document which described a right to access plaintiff’s land over defendant’s land did not include any language indicating access was to be granted permanently. Therefore the document created a license which defendant had revoked: The law is well settled that ” [a]n easement appurtenant is created when […]

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CREDIBILITY ISSUES ARE FOR THE JURY, PLAINTIFF’S VERDICT SHOULD NOT HAVE BEEN SET ASIDE BASED UPON THE JUDGE’S FINDING DEFENDANT DOCTOR’S TESTIMONY CREDIBLE IN THIS MEDICAL MALPRACTICE, WRONGFUL DEATH CASE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant’s motion to set aside the verdict in this medical malpractice, wrongful death case should not have been granted. Decedent was suffering from a life-threatening but eminently treatable condition (unstable angina) when he saw the defendant doctor.  Decedent died three days later. The doctor testified decedent had refused […]

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CONTINUOUS TREATMENT DOCTRINE RENDERED THE MEDICAL MALPRACTICE ACTION TIMELY, SUPREME COURT REVERSED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined that the cause of action fOR medical malpractice stemming from an office visit within the limitations period was independently viable, and the continuous treatment doctrine rendered all the causes of action timely: … [T]he claims based on allegations of negligent treatment during the January 2, 2013 office visit have […]

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MOTION TO SET ASIDE THE VERDICT IN THIS MEDICAL MALPRACTICE ACTION SHOULD NOT HAVE BEEN GRANTED, THE JURY REASONABLY FOUND THE DOCTOR’S NEGLIGENCE WAS NOT A PROXIMATE CAUSE OF PLAINTIFF’S INJURIES (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined that plaintiff’s motion to set aside the verdict in this medical malpractice case should not have been granted. The jury found that the doctor’s postsurgical negligence (ordering an MRI of plaintiff’s hand rather than her wrist) was not a substantial factor in causing plaintiff’s injuries: … [W]e conclude […]

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DEFENDANT DRIVER RAISED A QUESTION OF FACT WHETHER THE CAUSE OF THE ACCIDENT WAS BLACK ICE, PLAINTIFF PASSENGER’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED, DEFENDANT’S MOTION TO AMEND THE PLEADINGS TO ADD THE EMERGENCY DOCTRINE DEFENSE SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined plaintiff passenger’s motion for summary judgment against defendant driver should not have been granted and defendant’s motion to amend the pleadings to add the emergency doctrine defense should have been granted. Defendant lost control of the car but raised an issue of fact whether the cause of […]

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QUESTION OF FACT WHETHER SNOW PLOWING CONTRACTOR LAUNCHED AN INSTRUMENT OF HARM OR CREATED OR EXACERBATED A DANGEROUS CONDITION IN THIS ICE AND SNOW SLIP AND FALL CASE (FOURTH DEPT).

The Fourth Department, in a comprehensive decision not fully summarized here, determined there was a question of fact whether the snow removal contractor (SWBG) had launched an instrument of harm or created or exacerbated a dangerous condition by piling snow near where plaintiff slipped and fell: With respect to the third-party action, we agree with […]

QUESTION OF FACT WHETHER DEFENDANTS UNREASONABLY INCREASED THE RISK IN THIS HORSEBACK-RIDING-LESSON ACCIDENT CASE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant’s motion for summary judgment in this horseback-riding-lesson accident should not have been granted. Plaintiffs’ expert raised questions of fact whether defendants unreasonably increased the risk of riding: The expert opined that defendant unreasonably increased the risks of horseback riding by numerous acts and omissions, including selecting an […]

ALTHOUGH THERE WERE NO GUARD RAILS ON THE SCAFFOLD, PLAINTIFF DID NOT TIE OFF HIS HARNESS AND LANYARD, QUESTION OF FACT WHETHER PLAINTIFF’S CONDUCT WAS THE SOLE PROXIMATE CAUSE OF HIS INJURY FROM A FALL, SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE OF ACTION PROPERLY DENIED (FOURTH DEPT).

The Fourth Department determined there was a question of fact whether plaintiff’s conduct (not tying off a safety harness) was the sole proximate cause of his injuries from a fall. Therefore his motion for summary judgment on his Labor Law 240(1) cause of action was properly denied: Defendants had engaged claimant’s employer to sandblast and […]

BANK WHICH PURPORTEDLY ACCELERATED THE DEBT DID NOT HAVE STANDING TO DO SO, PLAINTIFF BANK ENTITLED ONLY TO THE UNPAID INSTALLMENTS WHICH ACCRUED DURING THE SIX YEARS PRIOR TO COMMENCING THE ACTION (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the bank which purportedly accelerated the debt was not a holder or assignee of the mortgage and did not own or hold the note. Therefore the debt was not accelerated. Plaintiff bank was entitled to the unpaid installments which accrued during the 6-year (and 90 day) period before […]

WHERE FATHER RELINQUISHED CUSTODY BY CONSENT, HE NEED NOT MAKE A THRESHOLD SHOWING OF A CHANGE IN CIRCUMSTANCES TO BE ENTITLED TO A HEARING ON HIS CUSTODY PETITION, NUMEROUS LEGAL AND FACTUAL ERRORS BY THE JUDGE REQUIRED THAT THIS MATTER BE SENT BACK FOR HEARINGS AND RULINGS ON CUSTODY AND VISITATION ISSUES RAISED BY THE FATHER’S PETITION (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined father’s petition for custody should not have been dismissed without a hearing because his prior relinquishment of custody was by consent and therefore no prior order had been issued denying father custody based upon extraordinary circumstances. Where there exists no prior order denying a parent custody based upon extraordinary circumstances, […]

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