Bruce Freeman – New York Appellate Digest

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Meanwhile lets just say that we are proud Bruce Freeman contributed a whooping 8475 entries.

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Municipal Law, Real Property Tax Law

THE CITY PROPERLY AMENDED ITS CHARTER DELETING THE PROVISIONS REQUIRING THE CITY TO ENFORCE PAYMENT OF DELINQUENT PROPERTY TAXES, IMPOSING THAT DUTY ON THE COUNTY (THIRD DEPT).

The Third Department, over a two-justice dissent, determined the city properly amended its charter by deleting the provisions requiring the city to enforce payment of delinquent property taxes, thereby imposing that duty upon the county: By adopting Local Law No. 2, the City amended its charter by deleting the provisions requiring the City to enforce […]

August 11, 2022 /0 Comments/by Bruce Freeman

Negligence

DEFENDANT PROPERTY OWNER NOT LIABLE FOR INJURY CAUSED BY THE SPONTANEOUS ACT OF A BAR PATRON (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant bar owner could not be liable for the spontaneous act of a bar patron which injured plaintiff: … [T]he plaintiff allegedly sustained personal injuries at the defendants’ bar in Nassau County. At the time of the alleged incident, a female patron purportedly jumped onto the lap of […]

August 10, 2022 /0 Comments/by Bruce Freeman

Evidence, Negligence

PLAINTIFF’S EVIDENCE OF THE CAUSE OF THE SLIP AND FALL, A RAISED SIDEWALK FLAG IDENTIFIED IN A PHOTOGRAPH, WAS SUFFICIENT TO DEFEAT DEFENDANT’S MOTION FOR SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff sufficiently identified the cause of the slip and fall. Defendant’s motion for summary judgment should not have been granted: … [T]he defendant failed to establish, prima facie, that the plaintiff was unable to identify the cause of his fall without resort to speculation. In support of his […]

August 10, 2022 /0 Comments/by Bruce Freeman

Constitutional Law, Criminal Law, Evidence

ALTHOUGH DEFENDANT WAS PROPERLY DETAINED, ONCE THE PAT-DOWN SEARCH REVEALED DEFENDANT DID NOT HAVE A WEAPON THE POLICE WERE NOT JUSTIFIED IN REMOVING THE (STOLEN) WALLET FROM DEFENDANT’S POCKET AND SEARCHING IT; THE ERROR WAS NOT HARMLESS UNDER THE STANDARD FOR CONSTITUTIONAL ERROR (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion to suppress the wallet seized in the search of his person should have been granted. The related robbery convictions were reversed and a new trial on those counts was ordered. Defendant fled from the scene of the mugging and was properly detained by the police. However, […]

August 10, 2022 /0 Comments/by Bruce Freeman

Civil Procedure, Evidence

THE CONDITIONAL PRECLUSION ORDER BECAME ABSOLUTE WHEN PLAINTIFF DID NOT COMPLY BY PROVIDING DEFENDANTS WITH MEDICAL AUTHORIZATIONS BY THE SPECIFIED DATE; BECAUSE PLAINTIFF OFFERED NO REASONABLE EXCUSE, PLAINTIFF SHOULD HAVE BEEN PRECLUDED FROM PRESENTING ANY MEDICAL EVIDENCE AT TRIAL (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the plaintiff should have precluded from presenting any medical evidence at trial because plaintiff failed to comply with the conditional order requiring plaintiff to provide defendants with medical authorizations by a specified date: … [T]he plaintiff failed to comply with the conditional order by providing authorizations for […]

August 10, 2022 /0 Comments/by Bruce Freeman

Civil Procedure, Negligence

DEFENDANT IN THIS REAR-END COLLISION CASE RAISED A QUESTION OF FACT ABOUT A NONNEGLIGENT EXPLANATION FOR DEFENDANT’S STRIKING PLAINTIFF’S CAR (SECOND DEPT).

The Second Department, reversing Supreme Court, determined there was a question of fact about whether plaintiff, the front-most driver in this rear-end collision action, was negligent: Hersh [defendant] raised a triable issue of fact sufficient to defeat summary judgment … . Hersh submitted his own affidavit in which he asserted that, prior to the accident, […]

August 10, 2022 /0 Comments/by Bruce Freeman

Labor Law-Construction Law

THE INDUSTRIAL CODE PROVISION WHICH WAS THE BASIS OF THE LABOR LAW 241(6) CAUSE OF ACTION DID NOT APPLY TO PLAINTIFF’S DEMOLITION-WORK-INJURY; THE DEFENDANT GENERAL CONTRACTOR DID NOT EXERCISE SUPERVISORY CONTROL OVER PLAINTIFF’S WORK AND WAS NOT, THEREFORE, LIABLE UNDER LABOR LAW 200 (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the Industrial Code provision which was the basis of the Labor Law 241(6) cause of action did not apply to plaintiff’s demolition-work-injury and defendant general contractor (Lad) did not exercise supervisory control over defendant’s work and was not therefore liable under Labor Law 200: … [T]he cause […]

August 10, 2022 /0 Comments/by Bruce Freeman

Civil Procedure, Foreclosure

TO AVOID DISMISSAL PURSUANT TO CPLR 3215 (C) THE PLAINTIFF NEED ONLY TAKE PROCEEDINGS FOR THE ENTRY OF A DEFAULT JUDGMENT WITHIN ONE YEAR AND NEED NOT OBTAIN A DEFAULT JUDGMENT WITHIN A YEAR; ANY DELAYS AFTER THE ONE-YEAR PERIOD ARE IRRELEVANT (SECOND DEPT).

The Second Department, reversing Supreme Court in this foreclosure action, determined the complaint should not have been dismissed because plaintiff bank took steps to procure a default judgment within one year of the default. Any subsequent delays were irrelevant: … [A]pproximately two months after the defendant’s default, the plaintiff moved for an order of reference. […]

August 10, 2022 /0 Comments/by Bruce Freeman

Civil Procedure

THE DEFAULTING DEFENDANT WHOSE ANSWER HAD BEEN STRUCK WAS NOT ENTITLED TO FURTHER DISCOVERY PRIOR TO THE INQUEST ON DAMAGES (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defaulting defendant whose answer had been struck was not entitled to further discovery for the inquest on damages: The Supreme Court erred in granting the defendant’s motion to vacate the note of issue and certificate of readiness and to compel the plaintiff to provide additional discovery. “While […]

August 10, 2022 /0 Comments/by Bruce Freeman

Contract Law, Securities, Trusts and Estates

BREACH OF CONTRACT ACTIONS BY CERTIFICATEHOLDERS AGAINST THE TRUSTEE FOR RESIDENTIAL MORTGAGE BACKED SECURITIES TRUSTS DISMISSED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Pitt, reversing (modifying) Supreme Court, dismissed the remaining actions brought by certificateholders against the trustee (US Bank National Association) for residential mortgage backed securities (RMBS) trusts. The opinion is fact-specific, based upon contract language, and cannot be fairly summarized here: This case involves residential mortgage-backed securities […]

August 9, 2022 /0 Comments/by Bruce Freeman