You are here: / Bruce Freeman

Entries by

image_pdfPDF Friendly Versionimage_printPrint Friendly Version
,

A MORTGAGE DEBT CAN BE ACCELERATED ONLY BY AN UNEQUIVOCAL OVERT ACT, I.E., COMMENCING A FORECLOSURE ACTION OR A DOCUMENT MAKING IT CLEAR THE ENTIRE DEBT IS IMMEDIATELY DUE (NOT THAT IT WILL BE DUE IN THE FUTURE); A MORTGAGE DEBT CAN BE DE-ACCELERATED BY A VOLUNTARY DISCONTINUANCE, EVEN IF ITS PURPOSE IS TO STOP THE STATUTE OF LIMITATIONS FROM RUNNING (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, over a partial dissent and a concurrence, clarified how courts should handle two recurring issues in the sea of foreclosures which have inundated the courts: (1) how is the mortgage debt accelerated such that the entire amount becomes due and the six-year statute of […]

February 18, 2021 /0 Comments/by
,

ALTHOUGH FATHER WAS CULPABLE IN THE SEVERE BEATING BY MOTHIER AND THE SUBSEQUENT DEATH OF THE CHILD, THE SEVERE ABUSE STATUTE APPLIES ONLY TO “PARENTS” AS OPPOSED TO “PERSONS LEGALLY RESPONSIBLE;” BECAUSE FATHER WAS NOT THE BIOLOGICAL FATHER OF THE CHILD BEATEN BY MOTHER, THE SEVERE ABUSE ADJUDICATION WAS REVERSED (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Egan, reversing the severe abuse and derivative severe abuse adjudications against the father regarding mother’s biological children, otherwise affirmed the abuse and severe abuse and derivative abuse and derivative severe abuse adjudications, The severe abuse statute, unlike the abuse statute, permits only a finding against a […]

February 18, 2021 /0 Comments/by
,

FAMILY COURT DID NOT FOLLOW THE PROCEDURE MANDATED BY THE UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT BEFORE RULING OHIO HAD JURISDICTION IN THE CUSTODY MATTER; MOTHER’S NEW YORK FAMILY OFFENSE PETITION SHOULD NOT HAVE BEEN DISMISSED BECAUSE NEW YORK HAS SUBJECT MATTER JURISDICTION OVER FAMILY OFFENSES OCCURRING IN OHIO (THIRD DEPT).

The Third Department, reversing Family Court, determined: (1) Family Court did not follow the procedure required by the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) before ruling that Ohio had jurisdiction based on father’s custody petition there and dismissing mother’s New York child support and custody petitions: and (2) Family Court should not have […]

February 18, 2021 /0 Comments/by
,

CLASS CERTIFICATION FOR PERSONS DENIED PUBLIC ASSISTANCE BASED ON THE FAIR MARKET VALUE (FMV) OF THEIR VEHICLES WAS PROPER; THE OPT-IN PROCEDURE SHOULD BE USED TO IDENTIFY CLASS MEMBERS (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Lynch, determined the opt-in procedure should be used to identify members of the class who were denied public assistance based upon the fair market value (FMV) of their cars. The class certification by Supreme Court was found proper: In our prior decision regarding this matter, we […]

February 18, 2021 /0 Comments/by
, ,

OVERRULING PRECEDENT, THE FAILURE TO TIMELY FILE A CERTIFICATE OF MERIT IN A MEDICAL MALPRACTICE ACTION IS NOT A GROUND FOR DISMISSAL OF THE ACTION; IT IS NOT NECESSARY TO DEMONSTRATE THE ACTION HAS MERIT OR AN EXCUSE FOR THE FAILURE TO FILE IN SEEKING AN EXTENSION TO FILE THE CERTIFICATE (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Kennedy, overruling precedent, determined that the failure to timely file a certificate of merit pursuant to CPLR 3012-a in a medical malpractice action does not require dismissal of the action. In addition, a showing that the action has merit and an excuse for failing to file […]

February 18, 2021 /0 Comments/by
,

THE CHILD’S STATEMENTS ABOUT SEXUAL TOUCHING WERE ADEQUATELY CORROBORATED AND FATHER’S EXPLANATION FOR THE TOUCHING WAS NOT SUPPORTED BY THE EVIDENCE (THIRD DEPT).

The Third Department, reversing Family Court, determined the evidence supported sexual abuse and neglect by respondent-father. The child’s statements were sufficiently corroborated and the father’s explanation for touching the child was not credible: … [T]he proof of the child’s consistent descriptions of the inappropriate touching to various individuals, the child’s dramatic change in behavior, the […]

February 18, 2021 /0 Comments/by
, ,

THE FINDINGS LEADING TO THE TERMINATION OF PETITIONER WERE CONCLUSORY AND DID NOT ALLOW MEANINGFUL REVIEW; PETITIONER’S SUPERVISOR, WHO BROUGHT THE MISCONDUCT CHARGES, CHOSE THE HEARING OFFICER AND TESTIFIED AT THE HEARING, SHOULD RECUSE HERSELF FROM FURTHER PROCEEDINGS ON REMITTAL (THIRD DEPT).

The Third Department, annulling the termination petitioner’s employment with the county, determined the findings were conclusory and therefore did not allow meaningful review. In addition, the Third Department held that petitioner’s supervisor, KIssane, who brought the misconduct charges, chose the hearing officer and testified at the hearing, should be disqualified from the proceedings on remittal: […]

February 18, 2021 /0 Comments/by
,

QUESTION OF FACT WHETHER LEAVING AN ELEVEN-YEAR-OLD BOY UNSUPERVISED CONSTITUTED NEGLIGENCE; THE BOY, WHO WAS VISITING HIS 13-YEAR-OLD FRIEND’S HOME, WAS SEVERELY INJURED ATTEMPTING TO DO A FLIP OFF A PICNIC TABLE (THIRD DEPT).

The Third Department determined whether defendant was negligent in leaving an eleven-year-old boy unsupervised for six hours is a question of fact. School had been cancelled because of snow and defendant went to work. The boy was severely injured when he attempted to do a flip off a picnic table in the backyard: “The adequacy […]

February 18, 2021 /0 Comments/by

THE ZIP CODES ASSOCIATED WITH THE HOME ADDRESSES OF STATE EMPLOYEES SHOULD NOT BE PROVIDED PURSUANT TO A FOIL REQUEST BECAUSE THE FULL HOME ADDRESSES COULD EASILY BE FOUND ON THE INTERNET BY SEARCHING FOR AN EMPLOYEE’S NAME WITH THE RELATED ZIP CODE (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Garry, reversing (modifying) Supreme Court, determined the request for the zip codes association with the residences of state employees should not have been granted on invasion-of-privacy grounds. The court noted that the employees’ full addresses could easily be determined by using the Internet to search for […]

February 18, 2021 /0 Comments/by
, ,

DEFENSE COUNSEL WAS INEFFECTIVE IN FAILING TO INVESTIGATE FOUR WITNESSES WHO MAY HAVE CALLED INTO QUESTION THE EYEWITNESS’S ABILITY TO SEE THE SHOOTING AND THE DEFENDANT’S WHEREABOUTS AT THE TIME OF THE SHOOTING; DEFENDANT’S MOTION TO VACATE HIS CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS SHOULD HAVE BEEN GRANTED (THIRD DEPT).

The Third Department, reversing County Court, determined defendant’s motion to vacate his conviction, after a hearing, should have been granted on ineffective assistance grounds. Defense counsel was aware of three witnesses who called into question whether the eyewitness to the shooting was outside where she could have seen the shooting, or inside where she could […]

February 18, 2021 /0 Comments/by

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

Copyright © 2021 New York Appellate Digest, LLC
Site by CurlyHost | Privacy Policy