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EXCLUSIVITY OF A WORKERS’ COMPENSATION REMEDY PRECLUDED SUIT AGAINST AN EMPLOYEE OF A PERSON EMPLOYED BY PLAINTIFF’S EMPLOYER, THE NYC DEPARTMENT OF EDUCATION, IN THIS SLIP AND FALL CASE (SECOND DEPT).

The Second Department determined the exclusivity of a Workers’ Compensation remedy precluded plaintiff’s suit against an employee who worked for someone employed by plaintiff’s employer (NYC Department of Education, DOE). Plaintiff slipped and fell on a wet floor in a school cafeteria: Here, the New York City Department of Education (hereinafter DOE) employed Pedersen as […]

ALTHOUGH DECEDENT, A NEW YORK RESIDENT, WORKED FOR A PENNSYLVANIA COMPANY, NEW YORK HAD JURISDICTION OVER AN INJURY THAT OCCURRED OUTSIDE NEW YORK (THIRD DEPT).

The Third Department determined New York could exercise jurisdiction over an injury that occurred outside New York. Decedent was a New York resident working for a Pennsylvania company: The Board has jurisdiction over a claim for an injury occurring outside of New York where there are “sufficient significant contacts” between the employment and New York … […]

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STORM IN PROGRESS EVIDENCE IN THIS SIDEWALK SLIP AND FALL CASE INSUFFICIENT, EVIDENCE SUBMITTED IN REPLY PAPERS SHOULD NOT HAVE BEEN CONSIDERED, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this sidewalk slip and fall case should have been denied. The evidence of a storm in progress was insufficient. The climatological analysis report submitted in the reply papers should not have been considered. There was no evidence when the sidewalk was last […]

TENANT ABUTTING SIDEWALK DID NOT DEMONSTRATE THAT IT DID NOT CLEAR ICE AND SNOW FROM THE SIDEWALK AND THAT IT DID NOT EXACERBATE THE DANGEROUS CONDITION, MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE PROPERLY DENIED (SECOND DEPT).

The Second Department determined the defendant’s (CVS’s) motion for summary judgment in this sidewalk slip and fall case was properly denied. CVS did not demonstrate that it made no efforts to clear the sidewalk and that it did not exacerbate the dangerous condition: CVS failed to demonstrate its prima facie entitlement to judgment as a […]

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A DIAGNOSIS OF PARAPHILIA NOS (NONCONSENT) IS NOT ACCEPTED IN THE PSYCHIATRIC OR PSYCHOLOGICAL COMMUNITIES, EXPERT EVIDENCE ABOUT THE DISORDER SHOULD NOT HAVE BEEN ADMITTED IN THIS SEX OFFENDER CIVIL COMMITMENT TRIAL (SECOND DEPT).

The Second Department determined that Supreme Court properly found, after a Frye hearing ordered by the Second Department and held after the trial, the diagnosis of paraphilia NOS (nonconsent) is not generally accepted in the psychiatric and psychological communities. The evidence should not have been admitted at the sex offender’s civil commitment trial: The evidence at the Frye hearing […]

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A DIAGNOSIS OF UNSPECIFIED PARAPHILIC DISORDER IS NOT ACCEPTED IN THE PSYCHIATRIC OR PSYCHOLOGICAL COMMUNITIES, EXPERT EVIDENCE ABOUT THE DISORDER SHOULD NOT HAVE BEEN ADMITTED IN THIS SEX OFFENDER CIVIL COMMITMENT TRIAL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the Frye hearing did not demonstrate that diagnosis of unspecified paraphilic disorder has achieved general acceptance in the psychiatric and psychological communities. Therefore the expert evidence on the disorder should not have been admitted at the trial to determine whether appellant sex offender should be subject to civil commitment: […]

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INABILITY TO AGREE ON CHILD’S RELIGIOUS TRAINING CONSTITUTED A CHANGE IN CIRCUMSTANCES WARRANTING THE AWARD OF SOLE CUSTODY TO MOTHER (SECOND DEPT).

The Second Department determined the parents’ inability to agree on the child’s religious training, together with the father’s threat to take to child to Morocco if she were not raised as a “true Muslim,” warranted awarding sole custody to mother: ” In order to modify an existing custody arrangement, there must be a showing of […]

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FAMILY COURT SHOULD HAVE MADE FINDINGS TO ALLOW THE CHILD TO PETITION FOR SPECIAL IMMIGRANT JUVENILE STATUS (SECOND DEPT).

The Second Department, reversing Family Court, determined Family Court should have made the findings to enable the child to petition for special immigrant juvenile state (SIJS): … [W]here, as here, the Family Court’s credibility determination is not supported by the record, this Court is free to make its own credibility assessments and overturn the determination […]

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SUPREME COURT, SUA SPONTE, SET ASIDE AN IN-COURT STIPULATION OF SETTLEMENT IN A DIVORCE ACTION, NEITHER PARTY REQUESTED THAT RELIEF, STIPULATION REINSTATED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the in-court stipulation of settlement in a divorce action should not have been set aside. Neither party requested that the stipulation be set aside: The defendant contends that the Supreme Court erred in, sua sponte, setting aside the stipulation. We agree. Neither the decedent nor the defendant requested […]

AMBIGUITY IN THE STIPULATION OF SETTLEMENT WAS RESOLVED BY LANGUAGE IN THE QUALIFIED DOMESTIC RELATIONS ORDER (QDRO), THE LANGUAGE IN THE QDRO SHOULD HAVE CONTROLLED THE INTERPRETATION OF THE STIPULATION (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined that an ambiguity in the stipulation of settlement involving the supplemental employee retirement plan (SERP) should have been resolved by the language of the qualified domestic relations order (QDRO): Courts must interpret matrimonial stipulations of settlement using the standards of contract interpretation … . A QDRO can […]

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