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THE FORECLOSURE ABUSE PREVENTION ACT (FAPA) APPLIES RETROACTIVELY TO THE 2005 DISONTINUANCE OF THE FORECLOSURE ACTION RENDERING THE ACTION COMMENCED IN 2015 TIME-BARRED (SECOND DEPT).

The Second Department, in a complex decision addressing issues not summarized here, determined the Foreclosure Abuse Prevention Act (FAPA) (CPLR 3217) applied retroactively to the 2005 voluntary discontinuance. Therefore the instant action, which was commenced in 2015, was time-barred: The Foreclosure Abuse Prevention Act … ; hereinafter FAPA) amended CPLR 3217, which governs the voluntary […]

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PLAINTIFF DID NOT DEMONSTRATE SANCTIONS FOR SPOLIATION OF EVIDENCE WERE WARRANTED; THE VIDEO FOOTAGE FOR THE DAY OF THE FALL HAD BEEN AUTOMATICALLY DELETED BEFORE THE PRESERVATION LETTER WAS RECEIVED; HOWEVER DEFENDANTS HAD PRESERVED 52 SECONDS OF VIDEO SHOWING JUST BEFORE THE FALL, THE FALL AND PLAINTIFF WALKING AWAY (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the restrictions placed on defendants’ presentation of evidence of liability relevant to plaintiff’s slip and fall constituted an abuse of discretion. Plaintiff fell on March 24, 2018, and defendants received a letter requesting that 12 hours of video footage be preserved on April 9, 2018. By April 9 […]

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FATHER’S PETITION FOR PERMISSION TO RELOCATE WITH THE CHILDREN SHOULD HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing Family Court, determined the denial of father’s petition for permission to relocate with the children was not supported by the evidence: The father’s testimony demonstrated that he was unable to continue renting his grandmother’s house in New York, where he and the children had been residing, and that the mother provided […]

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THE OPTION TO PURCHASE THE CONDOMINIUM UNIT WHEN IT BECAME VACANT DID NOT VIOLATE THE RULE AGAINST PERPETUITIES; ALTHOUGH THE TENANT IN THE UNIT WAS NOT NAMED, REFERENCE TO THE TENANCY WAS SUFFICIENT TO SUPPLY A “LIFE IN BEING” (FIRST DEPT).

The First Department, reversing Supreme Court, determined the contract giving plaintiff the option to purchase a condominium unit when the unit became vacant did not violate the rule against perpetuities (Estates, Powers and Trusts Law [EPTL] 9-1.1): The court’s determination that there was no relevant life in being specifically named in the option, and therefore, […]

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ALTHOUGH THERE WAS EVIDENCE THE VICTIM’S JAW WAS FRACTURED, THERE WAS INSUFFICIENT PROOF THE VICTIM SUFFERED “SERIOUS PHYSICAL INJURY” WITHIN THE MEANING OF PENAL LAW SECTION 10 (10); DEFENDANT’S ASSAULT SECOND CONVICTION WAS REDUCED TO ASSAULT THIRD (THIRD DEPT).

The Third Department, finding that the proof the victim suffered “serious physical injury” in this assault case insufficient, reduced defendant’s conviction from assault second to assault third. There was evidence the victim suffered a fractured jaw which was wired shut for weeks. But the evidence did not establish a “protracted impairment of health or … […]

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ALTHOUGH THERE WAS PROOF DEFENDANT WAS AWARE THE CO-DEFENDANT POSSESSED A WEAPON, THERE WAS NO PROOF DEFENDANT ACTED AS AN ACCOMPLICE IN THE CO-DEFENDANT’S POSSESSION OF A WEAPON; DEFENDANT’S CONVICTION OF CRIMINAL POSSESSION OF A WEAPON UNDER AN ACCOMPLICE THEORY WAS AGAINST THE WEIGHT OF THE EVIDENCE (THIRD DEPT).

The Third Department, reversing defendant’s conviction and dismissing the indictment, determined that, although the proof demonstrated defendant’s awareness that the co-defendant possessed a firearm, that awareness alone did not give rise to accomplice liability for the co-defendant’s criminal possession of a weapon: Defendant was convicted after a four-day trial. The Third Department held the conviction […]

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WHEN THE OFFICE OF CHILDREN AND FAMILY SERVICES (OCFS) ASSUMED CUSTODY OF CLAIMANT, IT OWED CLAIMANT A DUTY TO PROTECT HIM AGAINST FORESEEABLE HARM, INCLUDING SEXUAL ASSAULT; THIS CHILD VICTIMS ACT ACTION SHOULD NOT HAVE BEEN DISMISSED ON THE GROUND THE STATE DID NOT OWE CLAIMANT A SPECIAL DUTY (THIRD DEPT). ​

The Third Department, reversing the Court of Claims, determined this Child Victims Act action against the Office of Children and Family Services (OCFS) should not have been dismissed on the ground the state did not owe plaintiff a special duty: For the reasons set forth in our recent decision in A.J. v State of New […]

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DEFENDANTS RAISED QUESTIONS OF FACT SUPPORTING A “FRAUD IN THE INDUCEMENT” DEFENSE TO THE ACTION BASED UPON AN EXECUTED PROMISSORY NOTE (THIRD DEPT).

The Third Department, reversing Supreme Court, determined defendants raised a valid “fraud in the inducement” defense to the action seeking payment on an executed promissory note. Defendants executed the note to purchase protein powder from plaintiffs. Plaintiffs described the powder as having 23 to 25 grams of protein per 33/5 grams of powder. After the […]

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CLAIMANT-INMATE WAS SEXUALLY ASSAULTED IN HER CUBICLE IN A DORMITORY WITHOUT DOORS WHILE THE CORRECTION OFFICER (CO) GUARDING THE DORMITORY WAS ASLEEP; CLAIMANT PRESENTED ADEQUATE PROOF THE ASSAULT WAS FORESEEABLE (THIRD DEPT).

The Third Department, reversing the Court of Claims, determined claimant-inmate in this negligent supervision action presented sufficient proof the sexual assault by another inmate was foreseeable. Claimant was in a dormitory with cubicles and no doors. A male inmate crawled into claimant’s cubicle when the correction officer (CO) guarding dormitory was asleep: … [T]he question […]

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THE CRITERIA FOR A COURT-OF-APPEALS REVIEW OF AN APPELLATE DIVISION’S WEIGHT-OF-THE-EVIDENCE ANALYSIS IS EXPLAINED; HERE DEFENDANT’S MANSLAUGHTER CONVICTION, BASED ENTIRELY ON CIRCUMSTANTIAL EVIDENCE, WAS PROPERLY REVIEWED BY THE APPELLATE DIVISION, WHICH AFFIRMED THE CONVICTION (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Halligan, over two concurring opinions and an extensive dissenting opinion by Judge Wilson, determined the Appellate Division properly conducted a weight-of-the-evidence review of an entirely circumstantial manslaughter prosecution (affirming the conviction): Jorge Baque’s five-month-old daughter was found unresponsive in her crib at 6:30 a.m. on […]

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