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Entries by Bruce Freeman

Motion for Summary Judgment in Lieu of Complaint Should Have Been Denied—Question of Fact Re: Whether Spanish Document Was a Judgment

The First Department determined that a motion brought pursuant to CPLR 3213 to enforce a Spanish court’s award of damages against the defendant should not have been granted.  Experts disagreed about whether the Spanish document was an enforceable judgment.  The First Department explained the criteria for recognizing foreign decrees (CPLR 5302) and for determining a […]

Complaint Can Not Be Deemed Dismissed in Absence of Final Judgment

In reversing Supreme Court, the Second Department determined a complaint had not been dismissed because no final judgment dismissing the complaint had been entered after an order vacating a default: …[T]he Supreme Court issued an order granting the defendant’s motion to vacate his default in appearing and answering the complaint on the ground of lack […]

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SORA Court Has Discretion to Deny Downward Departure Even When Mitigating Factor Demonstrated by Preponderance of Evidence

In affirming the SORA court’s denial of an application for a downward departure, the Second Department noted that even where the defendant makes a showing by a preponderance of the evidence in support of a mitigating factor, the court need grant the application:” A sex offender’s successful showing by a preponderance of the evidence of […]

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Criteria for Prohibition Explained

In determining that prohibition did not lie to challenge the appointment of a special district attorney to investigate election law issues, the Second Department explained: ” [A]n article 78 proceeding in the nature of prohibition will not lie to correct procedural or substantive errors of law’” (Matter of Soares v Herrick, 20 NY3d 139, 145, […]

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No Article 78 Review Where Petitioner Defaulted

The Second Department noted that there can be no Article 78 review where the petitioner defaulted in the administrative proceeding.  Only the denial of the request to vacate the default can be reviewed: “[A] petitioner is not aggrieved by an administrative determination made on his [or her] default and may not seek to review such […]

Excessive Corporal Punishment Constituted Neglect and Derivative Neglect

In affirming Family Court’s determination that excessive corporal punishment constituted neglect and derivative neglect, the Second Department wrote: Although parents have a right to use reasonable physical force against a child in order to maintain discipline or to promote the child’s welfare, the use of excessive corporal punishment constitutes neglect (…Penal Law § 35.10; Family […]

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