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Entries by Bruce Freeman

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WHERE ALLEGATIONS IN A PETITION TO MODIFY CUSTODY ARE CONTROVERTED, THE PETITION SHOULD NOT BE RULED UPON WITHOUT A HEARING (SECOND DEPT).

The Second Department, reversing Family Court, determined a hearing should have been held in this modification of parental access proceeding. Family Court granted father’s petition without a hearing, despite the parties’ controverted allegations: “Although [a] parent seeking a change of custody is not automatically entitled to a hearing, custody determinations should [g]enerally be made only […]

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BECAUSE A CONTEMPORARY REPORT PROVIDED THE CITY WITH NOTICE OF THE NATURE OF THE SLIP AND FALL, THE PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED, DESPITE THE LACK OF A REASONABLE EXCUSE FOR FAILING TO TIMELY FILE (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the petition for leave to file a late notice of claim in this slip and fall case should have been granted. The line-of-duty report provided the city with timely knowledge of the nature of the claim and demonstrate the city would not be prejudiced by the delay in […]

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THE SECOND DEPARTMENT JOINED THE FIRST AND THIRD DEPARTMENTS IN HOLDING THAT THE EXTENDED STATUTE OF LIMITATIONS IN THE CHILD VICTIMS ACT APPLIES TO A NEW YORK RESIDENT WHO WAS ABUSED OUT-OF-STATE (SECOND DEPT).

The Second Department, joining the First and Third Departments, determined an action brought under the Child Victims Act by a person who was a resident of New York at the time the cause of action accrued can take advantage of the extended statute of limitations (CPLR 214-g) even where the wrongful conduct occurred out-of-state: The […]

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A FORUM SELECTION CLAUSE IN AN INSURANCE POLICY WHICH VIOLATES NEW YORK LAW IS NOT ENFORCEABLE (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Miller, determined that the forum selection clause in an insurance policy which violates New York law is not enforceable. The opinion is comprehensive and discusses several substantive civil procedure, contract law, corporation law, insurance law, workers’ compensation law and public policy issues which cannot fairly be […]

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ALTHOUGH ARTICLE 3 OF THE FAMILY COURT ACT PROHIBITS CONSIDERATION OF A NEW YORK JUVENILE DELINQUENCY ADJUDICATION IN A SORA RISK-LEVEL ASSESSEMENT, CONSIDERATION OF A NEW JERSEY JUVENILE DELINQUENCY ADJUDICATION IS NOT PROHIBITED (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Brathwaite Nelson, determined that, although a New York juvenile delinquency adjudication under article 3 of the Family Court Act cannot be considered in a SORA risk-level determination, a New Jersey juvenile delinquency adjudication can be considered: Although the express language in the Guidelines provides that a […]

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ACQUITTAL ON THE RAPE AND FORCIBLE TOUCHING CHARGES RENDERED THE “ENDANGERING THE WELFARE OF A CHILD” CONVICTION AGAINST THE WEIGHT OF THE EVIDENCE (SECOND DEPT).

The Second Department, reversing defendant’s “endangering the welfare of a child” conviction, determined defendant’s acquittal on the rape and forcible touching charges rendered the conviction “against the weight of the evidence:” In conducting our weight of the evidence review, we consider the jury’s acquittal on other counts, and, under the circumstances of this case, find […]

PLAINTIFF IS THE SUCCESSOR IN INTEREST TO THE PLAINTIFF IN A PRIOR IDENTICAL ACTION WHICH WAS DISMISSED FOR FAILURE TO COMPLY WITH DISCOVERY DEMANDS AND ORDERS; THE INSTANT ACTION IS PRECLUDED BY THE DOCTRINE OF RES JUDICATA (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff 120 Lexington Ave Corp, as the successor in interest to 122-24 Lexington Ave Corp, was precluded from bringing the action by the doctrine of res judicata. A nearly identical action by 122-24 Lexington Ave Corp had been dismissed based upon plaintiff’s failure to comply with discovery demands […]

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PLAINTIFF FELL THROUGH AN UNGUARDED STAIRWAY OPENING AND WAS ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION; DEFENDANTS DID NOT SHOW THAT THE PRE-DEPOSITION SUMMARY JUDGMENT MOTION WAS PREMATURE (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined plaintiff should have been awarded summary judgment on the Labor Law 240(1) cause of action and the pre-deposition summary judgment motion was not premature. While transporting large wooden panels past a stairway, plaintiff fell through an unguarded stairway opening: The court should have granted plaintiff partial summary judgment […]

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THE UNIFIED COURT SYSTEM’S DENIAL OF COURT EMPLOYEES’ APPLICATIONS FOR RELIGIOUS EXEMPTIONS FROM THE COVID VACCINE MANDATE AFFIRMED (FIRST DEPT). ​

The First Department affirmed the NYS Unified Court System’s (UCS’s) denial applications for religious exemptions from the COVID vaccine mandate. The issue was analyzed under both the US and NYS Constitutions. The USC held the petitioners (USC employees) failed to meet the qualifications for employment by not complying with the mandate. The decision is too […]

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