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Entries by Bruce Freeman

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THE DOCTRINE OF PROMISSORY ESTOPPEL CAN BE APPLIED TO BYPASS THE STATUTE OF FRAUDS IF THE RESULT OF ENFORCING THE STATUTE WOULD BE UNCONSCIONABLE, THE RESULT HERE WAS NOT UNCONSCIONABLE. ​

The Court of Appeals, in a full-fledged opinion by Judge Fahey, over a dissent (raising a different issue), agreeing with the Third Department, held that the doctrine of promissory estoppel can be applied to bypass the Statute of Frauds if enforcing the Statute of Frauds would lead to an unconscionable result. Here, however, disagreeing with the […]

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JUDGE’S INADEQUATE AND IMPROPER RESPONSE TO JURY QUESTIONS REQUIRED A NEW TRIAL IN THIS MEDICAL MALPRACTICE CASE, DEFENSE VERDICT REVERSED.

The Third Department, reversing the defense verdict in this medical malpractice trial, determined the judge’s response to jury questions was inadequate and improper. The judge did not respond at all to one question. And the judge’s response was different from the response discussed with counsel: … [I]n addition to Supreme Court’s failure to respond in […]

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PLAINTIFF BICYCLIST STRUCK FROM BEHIND, NO EVIDENCE OF PLAINTIFF’S COMPARATIVE NEGLIGENCE, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED.

The Second Department, reversing Supreme Court, determined the plaintiff bicyclist was entitled to summary judgment in this traffic accident case. Plaintiff was in the bicycle lane when he was struck from behind by defendant’s (Reyes’) car. There was no evidence plaintiff was comparatively negligent: “To prevail on a motion for summary judgment on the issue […]

EXPOSED TREE ROOT OVER WHICH PLAINTIFF TRIPPED AND FELL WAS OPEN AND OBVIOUS. ​

The Second Department determined an exposed tree root was an open and obvious condition. Plaintiffs’ slip and fall complaint was properly dismissed: “A landowner has a duty to exercise reasonable care in maintaining [its] property in a safe condition under all of the circumstances, including the likelihood of injury to others, the seriousness of the […]

DEFENDANTS DID NOT CONTROL THE MANNER OF PLAINTIFF’S WORK AND PLAINTIFF WAS ENGAGED IN ROUTINE MAINTENANCE, NOT CONSTRUCTION. LABOR LAW 200 AND 240(1) CAUSES OF ACTION PROPERLY DISMISSED.

The Second Department determined the Labor Law 200 and 240(1) causes of action were properly dismissed. Plaintiff fell from a ladder attached to the side of a tanker truck and alleged the fall was caused by the design of the ladder and the absence of safety device. Because the Labor Law 200 cause of action […]

THE $2,000,000 REPLACEMENT INSURANCE POLICY WAS CANCELLED FOR NON-PAYMENT JUST HOURS BEFORE PLAINTIFF WAS STRUCK BY THE INSURED’S CAR, THE FACT THAT A PREMIUM SUFFICIENT FOR THE PRIOR $1,000,000 POLICY HAD BEEN PAID WAS OF NO CONSEQUENCE.

The Second Department, reversing Supreme Court, over a two-justice dissent, determined the umbrella policy had been cancelled for non-payment just hours before plaintiff (Garcia) was struck by the car owned by the insured, Rakowski. The Second Department rejected the argument that the insurance contract was divisible. The GEICO policy in effect was a $2,000,000 umbrella […]

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QUESTION OF FACT WHETHER WITHDRAWAL OF PRIOR FORECLOSURE PROCEEDING CONSTITUTED THE REVOCATION OF THE ELECTION TO ACCELERATE THE DEBT, THEREBY STOPPING THE RUNNING OF THE SIX-YEAR STATUTE OF LIMITATIONS.

The Second Department determined the lender had raised a question of fact whether it had revoked its election to accelerate the debt by withdrawing a prior foreclosure action. The six-year statute of limitations began to run when the debt was accelerated by the first foreclosure action. If the withdrawal of that action revoked the debt acceleration, […]

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FATHER TOLD THE COURT HE HAD RETAINED COUNSEL BUT COUNSEL COULD NOT ATTEND THE PETITION-TO-RELOCATE HEARING THAT DAY, COURT WENT AHEAD WITH THE HEARING, FATHER DEPRIVED OF HIS STATUTORY RIGHT TO COUNSEL.

The Second Department, reversing Family Court, determined father had been deprived of his right to counsel in mother’s relocation-petition proceeding. Father appeared for the hearing and told the court he had retained an attorney but the attorney could not attend that day. The court went ahead with the hearing: After the court granted assigned counsel’s […]

SUPREME COURT IMPROPERLY AWARDED CUSTODY TO FATHER, RELIEF WHICH HAD NOT BEEN REQUESTED BY FATHER, WITHOUT A BEST INTERESTS HEARING, AFTER MOTHER ASKED TO APPEAR AT A HEARING BY TELEPHONE.

The Second Department, reversing Supreme Court, determined the award of custody to father, which father had not requested, when mother asked to appear at a hearing by telephone was improper. The hearing was to determine father’s allegation mother had violated the visitation provisions of the consent order awarding custody to her. The child had appealed. […]

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