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Entries by Bruce Freeman

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THE BIOLOGICAL MOTHER OF THE CHILD DIED BEFORE SHE AND PETITIONER WERE TO BE MARRIED; THE BIOLOGICAL FATHER ARGUED PETITIONER DID NOT HAVE STANDING TO SEEK CUSTODY AND FAMILY COURT AGREED; HOWEVER STANDING CAN BE DEMONSTRATED BY EXTRAORDINAY CIRCUMSTANCES WHICH MAY BE PRESENT; MATTER REMITTED FOR A RULING (FIRST DEPT).

The First Department, reversing Family Court, determined standing in a custody matter can be proven by extraordinary circumstances and sent the matter back for a ruling. The child’s mother died unexpectedly before she and petitioner were to be married. The petition was denied for lack of standing. However, standing can be proven by extraordinary circumstance […]

THE “CONSENT TO SEARCH” PROBATION CONDITION WAS NOT SUPPORTED BY THE NATURE OF DEFENDANT’S OFFENSE (SECOND DEPT).

The Second Department, eliminating the “consent to search” probation condition, determined the condition was not supported by the nature of defendant’s offense: Appeal by the defendant from a judgment … convicting him of assault in the second degree, upon his plea of guilty, and sentencing him to a definite term of incarceration of one day, […]

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FATHER DID NOT DEMONSTRATE THE CHILD WAS CONSTRUCTIVELY EMANCIPATED; THEREFORE FATHER’S SUPPORT OBLIGATION SHOULD NOT HAVE BEEN TERMINATED (SECOND DEPT).

The Second Department, reversing Family Court, determined father did not meet his burden of proof in his attempt to demonstrate the constructive emancipation of the child such that his support obligation should be terminated: “It is fundamental public policy in New York that parents are responsible for their children’s support until age 21” … . […]

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MOTHER’S PETITION FOR SOLE CUSTODY SHOULD NOT HAVE BEEN GRANTED UPON FATHER’S FAILURE TO APPEAR; FATHER’S ATTORNEY EXPLAINED FATHER’S ABSENCE AND REQUESTED AN INQUEST; AN APPEAL FROM AN ORDER ENTERED UPON A PARTY’S DEFAULT BRINGS UP FOR REVIEW ONLY THE CONTESTED MATTERS BEFORE THE TRIAL COURT (SECOND DEPT).

The Second Department, reversing Family Court, determined mother’s petition for sole custody should not have been granted upon father’s failure to appear. Father’s attorney explained father’s absence and asked that the matter be set down for an inquest. The Second Department noted that, upon appeal from an order made upon a party’s default, only the […]

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THE FOIL REQUEST FOR THE NUMBER AND LOCATION OF LICENSE PLATE READERS (LPR’S) SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, over a dissent, determined the FOIL request for the location of license plate readers (LPR’s) should have been granted. The majority decision and the dissent include comprehensive discussions of the relevant caselaw which are far too extensive to fairly summarize here: In light of the presumption of accessability and […]

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THE UNIVERSITY REVIEW BOARD’S FINDING THAT PETITIONER VIOLATED THE STUDENT CODE BY ENGAGING IN SEXUAL MISCONDUCT REVERSED, VIOLATIONS DISMISSED, RECORD EXPUNGED; THERE WAS A DISSENT (SECOND DEPT). ​

The Second Department, over a dissent, reversing the University Review Board,  determined it was not demonstrated that petitioner, a student at Stony Brook University, violated the Student Code by engaging in sexual misconduct. The only issue before the Board and the court was whether S.G., a fellow student, consented to sex. The facts are far […]

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HERE THE DEFENDANT SELF-STORAGE FACILITY DID NOT NOTIFY PLAINTIFF OF THE CHANGED SALE-DATE AND DISPOSED OF PLAINTIFF’S PROPERTY TO A THIRD PARTY AT THE TIME OF THE SALE; PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT BASED ON DEFENDANT’S VIOLATION OF THE NOTICE PROVISIONS OF THE LIEN LAW AND DEFENDANT’S SUBSEQUENT CONVERSION OF THE PROPERTY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment against defendant self-storage facility based upon defendant’s violation of the notice provisions of the Lien Law and conversion of the property: … [T]he defendants failed to satisfy the notice requirements of Lien Law § 182(7). Specifically, the notice sent to the plaintiff […]

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US BANK AS THE CURRENT ASSIGNEE OF THE MORTGAGE SHOULD HAVE BEEN ALLOWED TO INTERVENE IN THIS ACTION TO DISCHARGE AND CANCEL THE MORTGAGE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined US Bank, the current assignee of the mortgage, should have been allowed to intervene in this action to cancel and discharge the mortgage pursuant to RPAPL 1501(4): “Upon a timely motion, a person is permitted to intervene as of right in an action involving the disposition of property […]

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PLAINTIFF TRIPPED OVER A PIECE OF PLYWOOD COVERING A SMALL HOLE; DEFENDANT DID NOT DEMONSTRATE THAT IT LACKED CONSTRUCTIVE NOTICE OF THE CONDITION; THE LABOR LAW 200 CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined plaintiff’s Labor Law 200 cause of action should not have been dismissed. Plaintiff alleged he tripped and fell when his foot stuck a piece of plywood covering a hole. Defendant did not demonstrate a lack of constructive notice of the condition: … [T]he defendant failed to show, […]

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PLAINTIFF REAL ESTATE BROKER’S CAUSES OF ACTION (SEEKING THE REAL ESTATE COMMISSION) AGAINST THE BUYERS WHO SUBSEQUENTLY BOUGHT THE PROPERTY USING A DIFFERENT BROKER SHOULD HAVE BEEN DISMISSED; THE QUANTUM MERUIT, TORTIOUS INTERFERENCE WITH CONTRACT AND FRAUD CAUSES OF ACTION WERE NOT MADE OUT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the quantum meruit, tortious interference with contract and fraud causes of action should have been dismissed. Plaintiff, a real estate broker, had made an offer on sellers’ property on behalf of the Sorkin defendants which was rejected. Subsequently the Sorkin defendants, using a different broker, made another offer […]

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