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Entries by Bruce Freeman

Res Ipsa Loquitur Cause of Action Should Not Have Been Dismissed/Question of Fact About Whether Handrail Which Came Loose Was In Exclusive Control of Defendant

The Fourth Department determined Supreme Court should not have granted defendant’s motion for summary judgment on plaintiff’s res ipsa loquitur case of action.  Plaintiff was injured when a handrail came loose from the wall in her apartment building: Supreme Court … erred in granting defendant’s motion for summary judgment dismissing the complaint on the ground […]

Restaurant Chair Collapsed: No Question of Fact About Constructive Notice of Condition of the Chair/Res Ipsa Loquitur Did Not Apply

The Fourth Department, over a two-justice dissent, affirmed the grant of summary judgment to defendant restaurant owner.  A chair at the restaurant collapsed when plaintiff sat down.  The court determined the defendant did not have constructive notice of the condition of the chair and the doctrine of res ipsa loquitur did not apply: The duty […]

Strict Liability for Clean Up of Petroleum Spilled Between 1890 and 1935

The Fourth Department determined the current owners of land contaminated with petroleum between 1890 and 1935 were strictly liable for clean-up under the Navigation Law, despite intervening use of the land as a scrap yard: We conclude that plaintiffs established their entitlement to a determination that defendants are contributing “dischargers” pursuant to Navigation Law § […]

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Criteria for Review of Agency’s Condemnation of Land Explained/Failure to Consider Future Development of Land Did Not Constitute Improper Segmentation of Environmental Impact Review

The Fourth Department determined the condemnation of land by the Lockport Industrial Development Agency (LIDA) and the related State Environmental Quality Review Act (SEQRA) review were properly done. The court determined that the failure to consider future development of the land did not amount to an improper segmentation of the SEQRA review process: The court […]

Petitioners Did Not Have Standing to Challenge Construction of Shopping Mall/No Showing of Unique Environmental Injury

The Second Department determined that members of a “Neighborhood Preservation Coalition” did not have standing to challenge the construction of a shopping mall.  The petitioners lived approximately 1300 to 2000 feet away from the proposed construction site: Contrary to the petitioners’ contention, the Supreme Court properly concluded that they lacked standing. ” [I]n land use […]

No Rigid Formula for a Constructive Trust

The Second Department determined that a petition seeking to impose a constructive trust on an IRA properly survived a motion for summary judgment. The petitioners are the children of James (now deceased) and the former beneficiaries of James’ Oppenheiner Funds IRA.  The respondent, Holbrook, is the executor of the estate of James’ second wife (the […]

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No Constructive Notice of Peeling Paint in Lead-Paint Exposure Cases

The Third Department determined summary judgment was properly granted to defendants in a lead-paint exposure case.  Plaintiff failed to raise a question of fact about whether the defendants were aware of peeling paint in the apartment: To raise a triable issue of constructive notice, plaintiff was required to show “that the landlord (1) retained a […]

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