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Entries by Bruce Freeman

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ALTHOUGH PLAINTIFF MADE OUT A PRIMA FACIE CASE IN THIS LABOR LAW 240(1) LADDER-FALL ACTION, DEFENDANTS RAISED TRIABLE ISSUES OF FACT BY POINTING TO INCONSISTENCIES IN PLAINTIFF’S ACCOUNT (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendants were able to raise triable issues of fact in this ladder-fall Labor Law 240(1) cause by pointing to inconsistencies in the plaintiff’s version of events: Plaintiff was allegedly injured while removing and replacing bricks on a building at a construction site. At his deposition, plaintiff testified that […]

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PLAINTIFF’S ALLOWING HIS ATTACKER INTO HIS APARTMENT WAS AN INTERVENING ACT AND A SUPERSEDING PROXIMATE CAUSE WHICH RELIEVED THE BUILDING DEFENDANTS OF ANY LIABILITY FOR LAPSES IN SECURITY (FIRST DEPT).

The First Department, reversing Supreme Court, determined that there was evidence building security was lax, but plaintiff’s allowing the attacker, whom plaintiff knew, into to plaintiff’s apartment was an intervening act relieving the building defendants from liability: Plaintiff, a psychiatrist, was conducting a patient session in his home office when Jacob Nolan, the cousin of […]

THE EXECUTIVE LAW WHICH CREATED THE NYS COMMISSION ON ETHICS AND LOBBYING IN GOVERNMENT IS UNCONSTITUTIONAL; THE LAW CREATED AN AGENCY WITH EXECUTIVE POWERS WHICH USURPED THE GOVERNOR’S POWER TO ENSURE FAITHFUL EXECUTION OF ETHICS LAWS (THIRD DEPT) ​

The Third Department, in a full-fledged opinion by Justice Powers. determined the Executive Law provision which created the New York State Commission on Ethics and Lobbying in Government is unconstitutional. The law was challenged by former governor Andrew Cuomo after ethics charges were brought against him by the Commission stemming from a book by Governor […]

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IN THIS BUS-PASSENGER INJURY CASE, THE BUS DRIVER RAISED A QUESTION OF FACT WHETHER THE EMERGENCY DOCTRINE APPLIED; THE BUS STRUCK A VEHICLE WHICH STOPPED SUDDENLY AFTER IT WAS CUT OFF BY A THIRD VEHICLE; THE BUS DRIVER’S AFFIDAVIT WAS SUPPORTED BY SURVEILLANCE VIDEO (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant bus driver raised a question of fact about the applicability of the emergency doctrine in this bus-passenger injury case. The bus driver’s affidavit, together with video evidence, indicated that the vehicle struck by the bus stopped suddenly after being cut off by a third vehicle: … [T]he […]

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DEFENDANT WAS NOT INFORMED OF THE PERIOD OF POSTRELEASE SUPERVISION, GUILTY PLEA VACATED; THE WAIVER OF APPEAL WAS NOT DISCUSSED UNTIL AFTER THE GUILTY PLEA, WAIVER INVALID (SECOND DEPT).

The Second Department, vacating defendant’s guilty plea and finding the waiver of appeal invalid, held that the judge’s failure to inform defendant of the period of postrelease supervision rendered the guilty plea involuntary. In addition, the judge did not discuss the waiver of appeal until after the guilty plea: … County Court did not specify […]

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THE RULING OF THE TOWN PLANNING BOARD ENGINEER RE: A PROPOSED INDUSTRIAL PARK MUST BE CHALLENGED BEFORE THE TOWN ZONING BOARD OF APPEALS, NOT SUPREME COURT (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the petitioners’ challenge to a ruling by the town’s planning board engineer must first be brought in front of the town’s zoning board of appeals before a court can hear it: “It is hornbook law that one who objects to the act of an administrative agency must exhaust […]

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SUPREME COURT DID NOT CITE ANY “EXTRAORDINARY CIRCUMSTANCES” TO JUSTIFY ITS SUA-SPONTE DISMISSAL OF THE COMPLAINT IN THIS DIVORCE ACTION (SECOND DEPT). ​

The Second Department, reversing Supreme Court in this divorce action, determined there was no demonstration of “extraordinary circumstances” to justify Supreme Court’s sua sponte dismissal of the complaint: “A court’s power to dismiss a [complaint], sua sponte, is to be used sparingly, and only when extraordinary circumstances exist to warrant dismissal” … . Here, the […]

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ALTHOUGH ONLY STEPHEN BOTT SIGNED THE NOTE, BOTH HE AND CHRISTINE BOTT SIGNED THE MORTGAGE; THEREFORE CHRISTINE BOTT WAS A “BORROWER” ENTITLED TO SEPARATE NOTICE OF THE FORECLOSURE PURSUANT TO RPAPL 1304; THE JOINT NOTICE WAS INVALID (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank’s failure to notify both borrowers of the foreclosure action violated RPAPL 1304 and required that defendants’ summary judgment motion be granted. Although only Stephen Bott signed the note, he and Christine Bott executed the mortgage instrument. Therefor the joint RPAPL 1304 notice was invalid: Although Stephen […]

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