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Entries by Bruce Freeman

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THE COMPLAINT STATED CAUSES OF ACTION AGAINST AN ACCOUNTING FIRM FOR MALPRACTICE, FRAUD AND AIDING AND ABETTING BREACH OF A FIDUCIARY DUTY; BOTH MOTHER AND SON ARE OWNERS OF A RESTAURANT; IT WAS ALLEGED THE SON’S TAKING A LARGE SALARY AND RECEIVING MILLIONS IN LOANS AGAINST THE BUSINESS WERE DOCUMENTED BY THE ACCOUNTING FIRM BUT NOT DISCLOSED TO MOTHER (FIRST DEPT). ​

The First Department, in a full-fledged opinion by Justice Renwick, determined the malpractice, fraud and breach of fiduciary duty causes of action against defendant accounting firm should not have been dismissed. Both plaintiff Ellen and her son Kenneth are owners of a restaurant. The complaint alleged Kenneth was looting the restaurant by taking a large […]

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THE TRANSFER OF DEFENDANT’S CASE TO A SPECIAL PROSECUTOR WAS JUSTIFIED BY THE EXPLANATION OF A CONFLICT WITHIN THE DA’S OFFICE; HOWEVER, THE TRANSFER BACK TO THE DA’S OFFICE WAS NOT BASED ON AN EXPLANATION WHY THE CONFLICT WAS NO LONGER A PROBLEM; THE TRANSFER BACK TO THE DA’S OFFICE WAS REVERSIBLE ERROR (THIRD DEPT). ​

The Third Department, in a full-fledged opinion by Justice Pritzker, reversing County Court, determined the prosecution of defendant’s case should not have been transferred from the special prosecutor, appointed two months before because of a conflict within the DA’s office, back to the DA’s office. The Third Department noted that the initial decision to appoint […]

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HERE PLAINTIFF CORPORATION, RC, DID NOT EXIST WHEN THE REAL ESTATE CONTRACT WAS ENTERED AND WAS NOT FORMED FOR SEVERAL YEARS UNTIL JUST BEFORE THE INSTANT LITIGATION; BECAUSE DEFENDANT DEALT WITH RC AS A CORPORATION FOR YEARS AND RECEIVED SOME BENEFIT FROM THE CONTRACT, THE DOCTRINE OF “CORPORATION BY ESTOPPEL” PROHIBITED DEFENDANT FROM AVOIDING ITS OBLIGATIONS UNDER THE CONTRACT BY ARGUING A NONEXISTENT CORPORATION CANNOT ENTER A CONTRACT (SECOND DEPT).

The Second Department, modifying Supreme Court, determined the “corporation by estoppel” doctrine prevented defendant from arguing the real estate purchase agreement was invalid because the corporate plaintiff (RC) did not exist at the time the contract was executed. RC was eventually formed years later just before this action commenced. The defendant had dealt with RC […]

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A MANAGING AGENT IS NOT LIABLE FOR INJURY CAUSED BY A DANGEROUS CONDITION ON THE MANAGED PROPERTY UNLESS THE MANAGING AGENT EXERCISES COMPLETE AND EXCLUSIVE CONTROL OVER THE OPERATION OF THE PROPERTY (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, determined the property managing agent did not exercise complete and exclusive control of the operation of the property and therefore could not be held liable for plaintiff’s trip and fall over a stub-up pipe protruding from a step: Supreme Court should have granted that branch of the defendants’ […]

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ALTHOUGH THERE WAS ADMISSIBLE EVIDENCE OF DOMESTIC VIOLENCE BY FATHER, THERE WAS NO ADMISSIBLE EVIDENCE THE CHILD WAS PRESENT; NEGLECT FINDING REVERSED (SECOND DEPT).

The Second Department, reversing Family Court, determined the admissible evidence did not support the finding that father neglected the child based on an act of domestic violence. Mother’s 911 call constituted admissible evidence of the domestic violence. But, although evidence the child was present apparently existed, it was never admitted in evidence: A recording of […]

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THE TURNOVER PETITION SEEKING REAL PROPERTY AND FUNDS TRANSFERRED TO DEFRAUD JUDGMENT CREDITORS SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the turnover petition seeking real property and funds transferred by judgment debtors to defraud judgment creditors should have been granted: CPLR 5225(b) “‘provides for an expedited special proceeding by a judgment creditor to recover money or other personal property belonging to a judgment debtor against a person in […]

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ALTHOUGH DEFENDANT RAISED A QUESTION OF FACT ABOUT PLAINTIFF’S CONTRIBUTORY NEGLIGENCE IN THIS REAR-END COLLISION CASE, DEFENDANT DID NOT RAISE A QUESTION OF FACT ABOUT HIS OWN LIABILTY; THE JUDGE SHOULD NOT HAVE DEEMED PLAINTIFF’S SUMMARY JUDGMENT MOTION PREMATURE (SECOND DEPT).

The Second Department, reversing Supreme Court in this rear-end collision case, determined that although defendant raised a question of fact about whether plaintiff was contributorily negligent, defendant did not raise a question of fact about the defendant-driver’s liability. In addition, plaintiff’s motion for summary judgment should not have been deemed premature: … [T]he defendants submitted […]

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THE BANK IN THIS FORECLOSURE ACTION FAILED TO PROVIDE THE ORIGINAL LOAN DOCUMENT AND THE LOST NOTE AFFIDAVIT WAS INSUFFICIENT; THE MOTION FOR A DEFAULT JUDGMENT SHOULD HAVE BEEN DENIED, CRITERIA EXPLAINED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank’s motion for a default judgment in this foreclosure action should not have been granted because the original loan document was not provided and the lost note affidavit was insufficient: A plaintiff moving for leave to enter a default judgment against a defendant must submit proof of […]

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IF THE STATUTE OF LIMITATIONS DEFENSE IS NOT RAISED BY A PARTY IT IS WAIVED AND CANNOT BE ASSERTED, SUA SPONTE, BY A JUDGE; IN ADDITION, A JUDGE CANNOT DECIDE A MOTION ON A GROUND NOT RAISED BY THE PARTIES (SECOND DEPT).

The Second Department, reversing Supreme Court, determined a judge, sua sponte, cannot raise the statute of limitations defense. If it is not raised by the parties, it is waived: The statute of limitations is an affirmative defense that is waived by a party unless it is raised either in a responsive pleading or by motion […]

A 2021 BUYBACK AGEEMENT BETWEEN A NATURAL GAS PRODUCER AND A NATURAL GAS SELLER WHICH WAS ENTERED IN ANTICIPATION OF A WINTER STORM WHICH WOULD REDUCE THE PRODUCER’S ABILITY TO DELIVER THE USUAL AMOUNT OF GAS IS VALID AND ENFORCEABLE AND CANNOT BE CANCELLED BASED UPON THE “FORCE MAJEURE” CLAUSE IN THE ORIGINAL 2019 CONTRACT BETWEEN THE PARTIES (FIRST DEPT).

The First Department, affirming Supreme Court, in a full-fledged opinion by Justice Mendez, determined a buyback agreement between Vaquero, a natural gas producer, and Hartree, a natural gas seller, which was entered in anticipation of an imminent winter storm during which Vaquero would be unable to meet its gas-delivery requirements under the 2019 contract, was […]

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