Bruce Freeman, Author at New York Appellate Digest

Family Law

THE EVIDENCE THAT THE PATERNAL UNCLE STRUCK THE CHILD ON THE ARM AFTER SHE MADE FUN OF AN ADULT IN THE HOUSEHOLD WAS NOT SUFFICIENT TO SUPPORT THE NEGLECT AND DERIVATIVE NEGLECT FINDINGS (SECOND DEPT).

The Second Department, reversing Family Court, determined the evidence the child’s paternal uncle struck the child on the arm after the child had made fun of another adult in the household did not support a neglect and derivative neglect finding. (The paternal uncle denied striking the child): While those legally responsible for the care of […]

April 14, 2021 /0 Comments/by Bruce Freeman

PLAINTIFF RAISED A QUESTION OF FACT WHETHER THE POLICE OFFICER WHO COLLIDED WITH HER CAR WAS ENGAGED IN AN EMERGENCY OPERATION AT THE TIME OF THE ACCIDENT; THEREFORE THE ORDINARY NEGLIGENCE CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff had raised a question of fact whether defendant police officer, Breen, was in fact involved in an emergency operation at the time she collided with the car in which plaintiff was a passenger. Therefore there was a question of fact whether the ordinary negligence principles, as opposed […]

April 14, 2021 /0 Comments/by Bruce Freeman

Attorneys, Contract Law, Family Law

THE CHILDREN DO NOT HAVE STANDING TO PARTICIPATE IN LITIGATION REGARDING THEIR PARENTS’ PRENUPTIAL AGREEMENT; THEREFORE THE ATTORNEY FOR THE CHILD DID NOT HAVE THE AUTHORITY TO MAKE A MOTION CONCERNING THE PRENUPTIAL AGREEMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the children did not have standing to participate in the litigation of financial matters of their parents’ divorce, including the litigation concerning whether the prenuptial agreement should be set aside. Therefore the attorney for the child (AFC) did not have the authority to make a motion regarding the […]

April 14, 2021 /0 Comments/by Bruce Freeman

Contract Law, Family Law

PLAINTIFF IN THIS DIVORCE ACTION WAS ENTITLED TO A NEW HEARING ON WHETHER THE PRENUPTIAL AGREEMENT SHOULD BE SET ASIDE; THE COURT NOTED THAT A CONTRACT WHICH MAY NOT BE UNCONSCIONABLE WHEN ENTERED MAY BECOME UNCONSCIONABLE WHEN FINAL JUDGMENT IS ENTERED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff was entitled to a new hearing on whether the prenuptial agreement was unconscionable. In the agreement, each party waived maintenance, equitable distribution and attorney’s fees. At the time the agreement was entered plaintiff was making $75 to $80,000 per year. At the time of the divorce plaintiff […]

April 14, 2021 /0 Comments/by Bruce Freeman

Bankruptcy, Civil Procedure, Negligence

PLAINTIFF BROUGHT A PERSONAL INJURY ACTION AFTER FILING FOR BANKRUPTCY AND BEFORE THE BANKRUPTCY ESTATE WAS FULLY ADMINISTERED BUT DID NOT DISCLOSE THE CAUSE OF ACTION IN THE BANKRUPTCY PROCEEDING; DEFENDANT WAS ENTITLED TO ASSERT THE JUDICIAL ESTOPPEL DEFENSE IN AN AMENDED ANSWER AND TO SUMMARY JUDGMENT DISMISSING THE COMPLAINT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant in a personal injury action should have been allowed to amend its answer to assert judicial estoppel and should have been granted summary judgment on the ground the plaintiff did not disclose the cause of action in the bankruptcy proceeding: On July 6, 2012, the plaintiff filed […]

April 14, 2021 /0 Comments/by Bruce Freeman

Immunity, Municipal Law, Negligence

THE POLICE OFFICERS’ DECIDING NOT TO ARREST PLAINTIFF’S DECEDENT’S SON AFTER AN ALTERCATION BETWEEN HER AND HER SON WAS AN EXERCISE OF DISCRETION PROTECTED BY GOVERNMENTAL IMMUNITY; THEREFORE THE CITY WAS NOT LIABLE FOR THE SUBSEQUENT ATTACK BY HER SON RESULTING IN THE DEATH OF PLAINTIFF’S DECEDENT (SECOND DEPT).

The Second Department, reversing Supreme Court in this third-party assault case, determined the city could not be held liable for the injury and death of plaintiff’s decedent at the hands of her son. The police had been called to plaintiff’s decedent’s home because of an altercation between her and her son, Matthew. The police did […]

April 14, 2021 /0 Comments/by Bruce Freeman

Evidence, Foreclosure

PLAINTIFF BANK DID NOT DEMONSTRATE STANDING TO BRING THE FORECLOSURE ACTION; THE REQUIRED BUSINESS RECORDS WERE NOT SUBMITTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank failed to demonstrate standing to bring the foreclosure action with admissible evidence: Although the plaintiff can establish standing by attaching the blank-endorsed note to the complaint when commencing the action … here, the record demonstrates that the plaintiff only attached the mortgage to the complaint. Moreover, […]

April 14, 2021 /0 Comments/by Bruce Freeman

Foreclosure, Real Property Actions and Proceedings Law (RPAPL)

THE BANK DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 1304; THE BANK’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank did not demonstrate compliance with the notice requirements of RPAPL 1304: … [T]he affidavit of Lori Spisak, an “authorized signer” of the plaintiff, submitted in support of the plaintiff’s motion, was insufficient to establish that the RPAPL 1304 notice was properly mailed, because Spisak did not […]

April 14, 2021 /0 Comments/by Bruce Freeman

Foreclosure, Real Property Actions and Proceedings Law (RPAPL)

THE INSTANT FORECLOSURE ACTION WAS PRECLUDED BY A PRIOR FORECLOSURE ACTION WHICH HAD NOT BEEN DISCONTINUED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the instant foreclosure action was precluded by a prior action which had not been discontinued: In May 2014, JPMorgan commenced an action to foreclose the consolidated mortgage (hereinafter the prior action). In August 2014, JPMorgan assigned the consolidated mortgage to Bayview Loan Servicing, LLC (hereinafter the plaintiff). In […]

April 14, 2021 /0 Comments/by Bruce Freeman

Evidence, Foreclosure

A PROPER FOUNDATION FOR THE BUSINESS RECORDS NECESSARY TO DEMONSTRATE STANDING TO BRING THE FORECLOSURE ACTION WAS NOT LAID; THE BANK’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank did not law a proper foundation for the business records required to demonstrate standing to bring the foreclosure action: … [T]he plaintiff submitted … the affidavit of Kathleen Manly, an assistant vice present of Residential Credit Solutions, Inc. … , the plaintiff’s loan servicer. While Manly […]

April 14, 2021 /0 Comments/by Bruce Freeman

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THE EVIDENCE THAT THE PATERNAL UNCLE STRUCK THE CHILD ON THE ARM AFTER SHE MADE FUN OF AN ADULT IN THE HOUSEHOLD WAS NOT SUFFICIENT TO SUPPORT THE NEGLECT AND DERIVATIVE NEGLECT FINDINGS (SECOND DEPT).

PLAINTIFF RAISED A QUESTION OF FACT WHETHER THE POLICE OFFICER WHO COLLIDED WITH HER CAR WAS ENGAGED IN AN EMERGENCY OPERATION AT THE TIME OF THE ACCIDENT; THEREFORE THE ORDINARY NEGLIGENCE CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

THE CHILDREN DO NOT HAVE STANDING TO PARTICIPATE IN LITIGATION REGARDING THEIR PARENTS’ PRENUPTIAL AGREEMENT; THEREFORE THE ATTORNEY FOR THE CHILD DID NOT HAVE THE AUTHORITY TO MAKE A MOTION CONCERNING THE PRENUPTIAL AGREEMENT (SECOND DEPT).

PLAINTIFF IN THIS DIVORCE ACTION WAS ENTITLED TO A NEW HEARING ON WHETHER THE PRENUPTIAL AGREEMENT SHOULD BE SET ASIDE; THE COURT NOTED THAT A CONTRACT WHICH MAY NOT BE UNCONSCIONABLE WHEN ENTERED MAY BECOME UNCONSCIONABLE WHEN FINAL JUDGMENT IS ENTERED (SECOND DEPT).

PLAINTIFF BANK DID NOT DEMONSTRATE STANDING TO BRING THE FORECLOSURE ACTION; THE REQUIRED BUSINESS RECORDS WERE NOT SUBMITTED (SECOND DEPT).

THE BANK DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 1304; THE BANK’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

THE INSTANT FORECLOSURE ACTION WAS PRECLUDED BY A PRIOR FORECLOSURE ACTION WHICH HAD NOT BEEN DISCONTINUED (SECOND DEPT).

A PROPER FOUNDATION FOR THE BUSINESS RECORDS NECESSARY TO DEMONSTRATE STANDING TO BRING THE FORECLOSURE ACTION WAS NOT LAID; THE BANK’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

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