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Entries by Bruce Freeman

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ALTHOUGH THE PEDESTRIAN-CAR ACCIDENT OCCURRED ON A ROAD OWNED BY DEFENDANT’S AND PLAINTIFF’S EMPLOYER AS DEFENDANT WAS LEAVING WORK, THE DEFENDANT WAS NOT ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT WHEN THE ACCIDENT OCCURRED, PLAINTIFF IS NOT RESTRICTED TO A WORKERS’ COMPENSATION LAW REMEDY (THIRD DEPT).

The Third Department, reversing Supreme Court, determined that plaintiff was not restricted to a Worker’s Compensation Law remedy in this pedestrian-car accident case. Both plaintiff and defendant were employed by the Culinary Institute of America (CIA). The accident occurred on a private CIA road as defendant was leaving work. The Third Department determined the accident […]

QUESTIONS OF FACT RAISED ABOUT ADEQUACY OF SNOW REMOVAL AND SALTING, AS WELL AS LIGHTING, IN THIS PARKING LOT SLIP AND FALL CASE, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (THIRD DEPT).

The Third Department, reversing Supreme Court, determined defendant property owner’s cross motion to dismiss the complaint should not have been granted in this slip and fall case. Plaintiff (Torgersen) had raised questions of fact whether defendant’s snow removal and salting efforts were sufficient, and whether the lighting in the parking lot was adequate: Torgersen claimed […]

LADDER MOVED FOR NO APPARENT REASON, PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) ACTION (FIRST DEPT).

The First Department determined plaintiff’s summary judgment motion on his Labor Law 240 (1) action was properly granted. Plaintiff alleged the ladder he was standing on suddenly moved: Plaintiff established his entitlement to partial summary judgment on the Labor Law § 240(1) claim through his testimony that he was caused to fall to the ground […]

UNSECURED, DAMAGED LADDER WOBBLED AND PLAINTIFF FELL, PLAINTIFF’S SUMMARY JUDGMENT MOTION ON HIS LABOR LAW 240 (1) CAUSE OF ACTION PROPERLY GRANTED (FIRST DEPT).

The First Department determined plaintiff’s motion for summary judgment on the Labor Law 240 (1) cause of action was properly granted. Plaintiff testified the ladder he was using was unsecured and damaged. The ladder wobbled causing plaintiff to fall [Defendant’s] submission of an ambiguous affidavit from plaintiff’s supervisor was insufficient to rebut plaintiff’s prima facie […]

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ACCEPTING THE ALLEGATIONS AS TRUE FOR PURPOSES OF A MOTION TO DISMISS, INSURANCE AGENT AND HIS EMPLOYERS OWED PLAINTIFF, THE BENEFICIARY OF DECEDENT’S LIFE INSURANCE POLICY, A DUTY OF CARE WITH RESPECT TO THE ISSUANCE OF THE POLICY, RELATIONSHIP WAS CLOSE TO PRIVITY (THIRD DEPT).

The Third Department, modifying Supreme Court, in a decision dealing with several substantive insurance and employment issues not summarized here, determined that plaintiff, as the beneficiary of her husband’s life insurance policy, had sufficiently alleged she was in a relationship close to privity such that the insurance agent (Pontillo) and his employers owed her a duty […]

RESPONDENT FELL USING A WALKER TO GET OFF A BUS, HER INJURY RESULTED FROM USE OR OPERATION OF A MOTOR VEHICLE, NO-FAULT BENEFITS PROPERLY AWARDED (FIRST DEPT).

The First Department determined no-fault benefits were properly awarded to respondent, who fell using a walker to exit a bus. Although the lift device was used when respondent got on the bus, the driver refused to activate the lift device when respondent got off. Respondent’s injury was deemed to stem form the use or operation […]

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DEFENDANT’S PRESENCE IN A METH LAB DID NOT DEMONSTRATE CONSTRUCTIVE POSSESSION OF THE CONTRABAND, METH-RELATED CONVICTIONS REVERSED (THIRD DEPT).

The Third Department, reversing defendant’s conviction, determined defendant’s presence in a meth lab was not sufficient to demonstrate constructive possession of the contraband in the lab: A defendant’s mere presence in the same location as contraband is insufficient to establish constructive possession … . Knowledge that the contraband is present is insufficient, standing alone, to show […]

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DEFENSE COUNSEL TOOK A POSITION ADVERSE TO HER CLIENT’S MOTION TO WITHDRAW HIS PLEA, SENTENCE VACATED AND MATTER REMITTED FOR ASSIGNMENT OF A NEW ATTORNEY FOR THE MOTION (THIRD DEPT).

The Third Department, vacating defendant’s sentence, determined County County should have assigned a new attorney after defense counsel took a position adverse to her client’s motion to withdraw his plea: At sentencing, defense counsel appropriately advised County Court that, although she had counseled defendant regarding the potential consequences of withdrawing his guilty plea, and despite […]

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COUNTY COURT DID NOT MAKE THE STATUTORY FINDINGS REQUIRED FOR DETERMINING DEFENDANT’S APPLICATION FOR YOUTHFUL OFFENDER STATUS IN THIS SEXUAL OFFENSE CASE, WAIVER OF APPEAL DID NOT PRECLUDE CHALLENGE ON APPEAL, SENTENCE VACATED AND MATTER REMITTED (THIRD DEPT).

The Third Department, vacating defendant’s sentence, determined County Court failed to place on the record the statutory factors to be weighed in determining youthful offender status. The waiver of appeal did not foreclose the challenge on appeal: … County Court’s comments regarding defendant’s application for youthful offender status failed to satisfy the statutory mandate of […]

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DEFENDANT’S PLEA ALLOCATION NEGATED AN ESSENTIAL ELEMENT OF THE OFFENSE, PRESERVATION OF THE ERROR NOT REQUIRED, GUILTY PLEA VACATED (THIRD DEPT).

The Third Department, reversing defendant’s conviction by guilty plea, determined that defendant’s plea colloquy negated an essential element of the offense (criminal contempt). An exception to the preservation requirement applied: “[W]here a pleading defendant’s recitation of the facts of his or her offense clearly casts doubt on his or her guilt and the court makes […]

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