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NUISANCE AND TRESPASS ACTIONS BASED UPON SURFACE WATER WERE NOT CONTINUING TORTS AND WERE THEREFORE TIME-BARRED, CRITERIA FOR CONTINUING TORTS IN THIS CONTEXT EXPLAINED (FOURTH DEPT).

The Fourth Department determined the nuisance and trespass actions based upon the alleged diversion of surface water were not continuing torts and were therefore time-barred: Defendants established that the nuisance and trespass causes of action accrued, at the latest, in June 2010, which is when plaintiff received the information from the USACE [US Army Corps […]

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QUESTION OF FACT WHETHER THE RECKLESS DISREGARD OR NORMAL NEGLIGENCE STANDARD APPLIES IN THIS POLICE CAR TRAFFIC ACCIDENT CASE (FOURTH DEPT).

The Fourth Department determined there was a question of fact whether the defendant police officer involved a traffic accident with plaintiff was proceeding through a red light or a green light on his way to an (another) accident scene. If the light was red, the reckless disregard standard would apply to the officer’s driving. If […]

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MEDICAL MALPRACTICE ACTION BASED UPON CANCER MISDIAGNOSIS PRIOR TO THE RELEVANT AMENDMENT OF THE STATUTE OF LIMITATIONS WAS TIME-BARRED, FRAUD-RELATED CAUSES OF ACTION BASED UPON THE MEDICAL MALPRACTICE REJECTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined that plaintiff’s medical malpractice cause of action based upon a cancer misdiagnosis was time-barred. The misdiagnosis was made before the statute of limitations for cancer misdiagnosis was changed (it now runs from when the plaintiff knew or should have known of the misdiagnosis). The court rejected the attempt to […]

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REPORT RELATED TO CITING DEFENDANT HEALTH SYSTEM FOR FAILURE TO INFORM PLAINTIFF AND HIS FAMILY OF THE UNINTENTIONAL DISCONNECTION OF THE HEART-LUNG MACHINE IS CONFIDENTIAL AND NOT DISCOVERABLE UNDER CPLR ARTICLE 31, EDUCATION LAW 6527 AND PUBLIC HEALTH LAW 2805-m (FOURTH DEPT).

The Fourth Department determined a report concerning an investigation by the Department of Health which cited defendant health system for failure to inform plaintiff and his family of the unintentional disconnection of a heart-lung machine was not subject to disclosure: Defendant met its burden of establishing that the information contained in the report was ” generated […]

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SCHOOL COULD NOT HAVE FORESEEN ASSAULT ON PLAINTIFF BY A CLASSMATE IN GYM CLASS, THE CLASSMATE’S VIOLENT ACTIONS WHEN HE WAS YOUNGER, THREE YEARS BEFORE, DID NOT PUT THE SCHOOL ON NOTICE THAT THE CLASSMATE POSED A DANGER (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined that the defendant school district could not have foreseen the incident in which the plaintiff’s high school classmate injured plaintiff in gym class. The classmate put plaintiff in a choke hold from behind and plaintiff fell to the floor on his face. The classmate’s violent behavior when he was […]

REAR-MOST DRIVER IN A CHAIN-REACTION ACCIDENT LIABLE TO PLAINTIFF WHO WAS IN THE LINE OF STOPPED CARS, REAR-MOST DRIVER NOT LIABLE FOR PLAINTIFF’S SUBSEQUENT INJURY WHEN HE WAS STRUCK BY ANOTHER DRIVER AFTER GETTING OUT OF HIS CAR (FOURTH DEPT).

The Fourth Department determined plaintiff was entitled to summary judgment in his action against the rear-most driver (Lipome) which struck a stopped car (Foley’s car) causing chain-reaction collisions. Plaintiff was subsequently struck by another car (driven by Hourt) after he got out of his car to check on the other drivers. The rear-most driver who caused […]

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VILLAGE EMPLOYEE’S TERMINATION BECAUSE HE DID NOT HAVE A COMMERCIAL DRIVER’S LICENSE WAS ARBITRARY AND CAPRICIOUS, JOB DESCRIPTION DID NOT EXPLICITLY REQUIRE A COMMERCIAL DRIVER’S LICENSE (FOURTH DEPT).

The Fourth Department determined that the termination of a village employee (Jakubowicz) was arbitrary and capricious. The employee was fired because he did not have a commercial driver’s license. However, the Mechanic II position does not explicitly require a commercial driver’s license: The Village, as limited by its brief, contends that a commercial driver’s license […]

USING THE COURT’S OWN DEFINITION OF SURFACE WATER, THE COURT DETERMINED THE SURFACE WATER DAMAGE EXCLUSION IN THE PROPERTY INSURANCE POLICY DID NOT APPLY, SUPREME COURT REVERSED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the insurer’s cross motion for summary judgment should not have been granted and the insured’s motion for summary judgment should have been granted. Plaintiffs’ home was damaged by water. The policy excluded damage from surface water and coverage was denied on that ground. Without describing the facts, the […]

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ALTHOUGH FATHER COULD NOT SEEK MODIFICATION OF A NEW JERSEY SUPPORT ORDER UNDER THE UNIFORM INTERSTATE FAMILY SUPPORT ACT (UIFSA) HE COULD SEEK MODIFICATION UNDER THE FULL FAITH AND CREDIT FOR CHILD SUPPORT ORDERS ACT (FFCCSOA) WHICH PREEMPTS THE UIFSA (FOURTH DEPT).

The Fourth Department determined that, although father could not seek modification of an out of state support order under the Uniform Interstate Family Support Act (UIFSA), he could seek modification under the Full Faith and Credit for Child Support Orders Act (FFCCSOA), which was deemed to preempt the UIFSA: In order to modify an out-of-state […]

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COURT DOES NOT HAVE THE POWER TO IMPUTE INCOME TO A PARTY IN FAMILY COURT ACT CUSTODY-VISITATION PROCEEDINGS FOR THE PURPOSE OF DETERMINING THE PARTY’S ELIGIBILITY FOR ASSIGNED COUNSEL, SUPREME COURT REVERSED (FOURTH DEPT).

The Fourth Department, in a full-fledged opinion by Justice Peradotto, reversing Supreme Court, determined the court did not have the power to impute income to the defendant for the purpose of determining defendant’s eligibility for assigned counsel in a Family Court Act custody/visitation matter. Defendant was a PhD student living with his parents and had very […]

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