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Entries by Bruce Freeman

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THE COVID-19 TOLLS AND THE COURT’S DELAY IN SIGNING THE ORDER TO SHOW CAUSE PROVIDED A REASONABLE EXCUSE FOR FAILING TO TIMELY FILE A NOTICE OF CLAIM IN THIS BUS ACCIDENT CASE; THE POLICE REPORT TIMELY NOTIFIED THE CITY OF THE RELEVANT FACTS; THE MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined petitioners’ motion for leave to serve a late notice of claim in this bus accident case should have been granted. The COVID-19 tolls, and the court’s delay in signing the order to show cause, provided a reasonable excuse and the police report timely notified the city of the […]

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HERE DEFENDANT’S FAILURE TO UPDATE HIS ADDRESS WITH THE DMV OR USPS WAS NOT “AFFIRMATIVE CONDUCT” DESIGNED TO AVOID SERVICE OF PROCESS; THEREFORE DEFENDANT SHOULD HAVE BEEN AFFORDED A HEARING ON WHETHER HE WAS PROPERLY SERVED (SECOND DEPT).

The Second Department, reversing Supreme Court, over a partial dissent, determined the fact that defendant did not update his address with the Department of Motor Vehicles or the United States Postal Service did not demonstrate “affirmative conduct” designed to mislead a party into serving process at an incorrect address. Here the service was by “nail […]

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THE PRE-ANSWER MOTION TO DISMISS CERTAIN CAUSES OF ACTION BASED UPON DOCUMENTARY EVIDENCE SHOULD HAVE BEEN GRANTED; THE CAUSES OF ACTION WERE PRECLUDED BY CONTRACT PROVISIONS (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined certain causes of action should have been dismissed based upon documentary evidence, I.e., the purchase agreement and warranty. The plaintiff Board of Managers sued the sponsor and developer of defendant condominium alleging defective construction in common areas: “On a pre-answer motion to dismiss pursuant to CPLR 3211, […]

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TO BE ENTITLED TO A CHANGE OF VENUE AS OF RIGHT, THE DEMAND MUST BE SERVED WITH THE ANSWER OR BEFORE THE ANSWER IS SERVED; TO BE ENTITLED TO A DISCRETIONAY CHANGE OF VENUE, THE MOTION MUST BE MADE PROMPTLY AFTER LEARNING OF THE GROUND FOR THE CHANGE; HERE THE MOTION SHOULD HAVE BEEN DENIED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ motion to change venue should not have been granted. The summons indicated plaintiff’s residence was the basis of venue in Kings County.  Defendants did not serve a demand to change venue with their answer or before the answer was served. The motion to change venue was based […]

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THE RECORD DID NOT DEMONSTRATE THE PARENTS COULD NOT COMMUNICATE ABOUT THE NEEDS OF THE CHILD AND THEREFORE DID NOT SUPPORT AWARDING SOLE CUSTODY TO FATHER; THE JUDGE SHOULD NOT HAVE LEFT IT UP TO THE PARTIES TO CRAFT A PARENTING-TIME SCHEDULE; A CHILD’S TESTIMONY IN A LINCOLN HEARING HAS NO INDEPENDENT EVIDENTIARY VALUE AND MUST BE KEPT CONFIDENTIAL (THIRD DEPT). ​

The Third Department, reversing Family Court, determined the record did not support sole legal custody of the child by father, and the judge’s delegating the arrangement of parenting time for mother was improper. In addition, the Third Department noted that statements made by the child to the court in a Lincoln hearing must remain confidential: […]

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DEFENDANT’S BEHAVIOR BEFORE AND DURING THE TRAFFIC STOP DID NOT CREATE “REASONABLE SUSPICION” THE DEFENDANT WAS ARMED; THE FRISK AND SEIZURE OF SMALL PACKETS OF PCP FROM DEFENDANT’S SOCK WAS NOT JUSTIFIED; THE MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Rodriguez, over a concurrence, reversing Supreme Court, determined the police, during a traffic stop, did not have “reasonable suspicion the suspect was armed” at the time defendant was frisked and small packets of PCP were seized from his sock, requiring suppression of the drugs. The concurrence […]

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THE MALPRACTICE ACTION WAS AGAINST EMERGENCY-ROOM PHYSICIANS WHO TREATED PLAINTIFF’S DECEDENT’S GUNSHOT WOUNDS; PLAINTIFF’S EXPERT’S AFFIDAVIT DID NOT DEMONSTRATE ANY FAMILIARITY WITH EMERGENCY MEDICINE AND THEREFORE DID NOT RAISE A QUESTION OF FACT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ summary judgment in this medical malpractice action should have been granted because the expert affidavit offered in opposition was deemed “conclusory” and insufficient to raise a question of fact. Plaintiff’s decedent died from three gunshot wounds. Plaintiff’s expert did not demonstrate any familiarity with the practice of […]

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HERE PLAINTIFF DID NOT IDENTIFY AN EXPERT WITNESS AS REQUIRED BY CPLR 3101 AND THE MEDICAL MALPRACTICE ACTION WAS PROPERLY DISMISSED; HOWEVER PLAINTIFF ALLEGED SCARRING AND BURNING DURING LASER HAIR REMOVAL AND MAY STILL BE ABLE TO PROVE ORDINARY NEGLIGENCE THROUGH THE TESTIMONY OF HIS TREATING PHYSICIAN AND OTHER EVIDENCE; THE NEGLIGENCE CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that, although plaintiff was precluded from offering expert evidence and therefore could not prove medical malpractice, the negligence cause of action should not have been dismissed. Plaintiff alleged scarring and burns caused by laser hair removal: The Supreme Court erred in dismissing the negligence cause of action on […]

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DESPITE THE FACT THAT THE ADDRESS FOR DEFENDANT CORPORATION ON FILE WITH THE SECRETARY OF STATE WAS INCORRECT, DEFENDANT WAS ENTITLED TO VACATE THE DEFAULT JUDGMENT ON THE GROUND DEFENDANT WAS NOT MADE AWARE OF THE ACTION IN TIME TO DEFEND (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion to vacate a default judgment should have been granted. Defendant’s address on file with the Secretary of State was incorrect and defendant alleged it did not receive actual notice of the action in time to defend. There was no evidence the failure to update the address […]

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IN THIS FORECLOSURE ACTION, PLAINTIFF’S AFFIANT DID NOT HAVE FIRST-HAND KNOWLEDGE OF THE MAILING PRACTICES OF THE PARTY RESPONSIBLE FOR MAILING THE RPAPL 1304 NOTICE OF FORECLOSURE TO THE DEFENDANT; JUDGMENT OF FORECLOSURE REVERSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the plaintiff in this foreclosure action did not prove the 90-day notice of foreclosure required by RPAPL 1304 was mailed to the defendant, a failure of proof which has been the ground for hundreds of reversals spanning many years: … [P]laintiff proffered the affidavit of Trey Cook, a […]

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