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Entries by Bruce Freeman

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Department of Homeless Services’ New Eligibility Procedure Triggered the Notice and Hearing Requirements of the City Administrative Procedure Act

The Court of Appeals, in a full-fledged opinion by Judge Graffeo, determined that the NYC Department of Homeless Services’ (DHS’s) adoption of a new Eligibility Procedure for temporary housing assistance triggered the notice and hearing requirements of the City Administrative Procedure Act (CAPA).  The failure to comply with the act prohibited implementation of the new […]

Invocation of Fifth Amendment Privilege Against Self-Incrimination by Both Attesting Witnesses Did Not Require Dismissal of Petition to Admit Will to Probate

The Third Department determined that Surrogate’s Court properly denied the motion to dismiss the petition.  Dismissal was sought because both attesting witnesses invoked their Fifth Amendment right against self-incrimination: To establish that the will was duly executed, petitioner was required to produce the attesting witnesses for examination unless the law permitted the court to dispense […]

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Property Owned by Religious Group Entitled to Real Property Tax Exemption

The Third Department reversed Supreme Court and determined a religious group (Cybeline Revival) had demonstrated its property was used primarily for religious and charitable purposes, and, therefore, the group was entitled to a real property tax exemption: …[P]etitioner met its burden to demonstrate that it uses the property primarily for its religious and charitable purposes […]

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Questions of Fact Existed About Whether Mortgage Lender Was Aware of Underlying “Foreclosure Rescue Scam”

In a full-fledged opinion by Justice Acosta, the First Department determined questions of fact existed about whether a mortgage loan (to Henry) was issued (by “Accredited”) with knowledge of fraud underlying the transaction.  Accredited alleged it was an “encumbrancer for value.”  After noting Accredited failed to submit evidence of its alleged “encumbrancer for value” status […]

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Court Should Have Instructed Jury on Plaintiff’s Comparative Fault in this Legal Malpractice Action

The Third Department determined Supreme Court should have charged the jury on comparative fault in a legal malpractice action.  The client’s first priority security interest in equipment and vehicles had not been protected. The client alleged the attorney’s failure to file a UCC-1 and DMV liens constituted malpractice. With respect to the requested comparative-fault jury […]

Because the Statute Relied Upon by the State Police to Deny a FOIL Request Did Not Pertain to the Sought Documents, the Request Should Have Been Granted/Court Cannot Substitute Another Ground for Denial

The Third Department determined an inmate’s FOIL request for lab reports, raw data, logbook entries, chain of custody forms and other documentation relating to the taking of blood samples should have been granted: Courts reviewing administrative determinations may only rely on the grounds invoked by the agency, and if those grounds are improper, the courts […]

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School District Attorney Was “Employee” Not “Independent Contractor”

The Third Department reversed the Comptroller’s finding that an attorney for a school district was an independent contractor, not an employee, requiring the attorney to refund retirement benefits already paid.  In explaining the criteria for an “employee” who provides professional services, the Third Department wrote: Where professional services are involved, the absence of direct control […]

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ARTICLE 10 PROCEEDINGS ARE CIVIL IN NATURE, HOWEVER THE COURT ANALYZED WHETHER RESPONDENT COULD REPRESENT HIMSELF AND WHETHER HE WAS AFFORDED EFFECTIVE ASSISTANCE USING THE CRIMINAL LAW STANDARDS (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice McCarthy, determined that Article 10 sex-offender commitment proceedings are civil in nature, but analyzed respondent’s request to represent himself and whether respondent received ineffective assistance under the criminal-law standards: Supreme Court did not err in denying respondent’s request to proceed pro se. Assuming, without deciding, that […]

Supreme Court Properly Declined to Give Husband Credit for Separate Property Contributions to Marital Residence—Husband Subsequently Conveyed Property to the Parties Jointly

The Third Department determined that Supreme Court properly declined to credit the husband with separate property contributions to the acquisition of the marital residence: Although the residence was purchased prior to the marriage and the husband’s separate funds were used for the down payment and premarital mortgage payments, the husband conveyed the property to the […]

Criteria for Reduction or Termination of Father’s Child Support Obligations Not Met/No Showing Wife Interfered with Access to Child/No Showing of Unjustified Abandonment by Child

The Third Department affirmed Family Court’s determination that the father’s child support obligations for his 18-year-old son should not be reduced or terminated.  The court described the relevant criteria: Generally, a parent in this state is obligated to support his or her child until the child turns 21 (see Family Ct Act § 413 [1] […]

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