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Entries by Bruce Freeman

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PRIOR FORECLOSURE ACTIONS DISMISSED FOR LACK OF STANDING DO NOT ACCELERATE THE DEBT AND THEREFORE DO NOT START THE RUNNING OF THE STATUTE OF LIMITATIONS (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the prior foreclosure actions had been dismissed for lack of standing and therefore did not accelerate the debt and did not start the running of the statute of limitations. Here the plaintiffs sought discharge and cancellation of the mortgage on the ground the statute of limitations for a […]

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DEFENDANT’S WAIVER OF APPEAL WAS INVALID; BASED UPON DEFENDANT’S STATEMENTS AT SENTENCING, THE JUDGE SHOULD HAVE INQUIRED ABOUT WHETHER DEFENDANT WISHED TO WITHDRAW HIS PLEA (THIRD DEPT). ​

​The Third Department, reversing defendant’s conviction by guilty plea, determined defendant’s waiver of appeal was invalid and, based upon defendant’s statements at sentencing, the judge should have inquired about whether defendant wished to withdraw his plea: The People concede … that defendant’s waiver of the right to appeal is invalid, as County Court’s explanation of […]

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DECEDENT’S SON’S ACTION AGAINST THE COUNTY COMMISSIONER OF SOCIAL SERVICES RE: MEDICAID REIMBURSEMENT FOR DECEDENT’S NURSING-HOME CARE WAS CONTRACTUAL IN NATURE; NO NOTICE OF CLAIM WAS REQUIRED; THERE ARE QUESTIONS OF FACT ABOUT WHETHER THE TRANSFER OF FATHER’S ASSETS TO SON FOR LESS THAN MARKET VALUE WAS FOR PURPOSES OTHER THAN MEDICAID PLANNING (THIRD DEPT).

The Third Department, reversing Supreme Court, determined no notice of claim was required for decedent’s son’s action against the Rensselaer County Commissioner of Social Services and there was a question of fact whether the transfer of decedent’s assets to decedent’s son was in anticipation of nursing home costs. The action against the county sounded in […]

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THE BANK IN THIS FORECLOSURE ACTION DID NOT PROVE COMPLIANCE WITH THE MAILING REQUIREMENTS OF RPAPL 1304 AND THEREFORE WAS NOT ENTITLED TO SUMMARY JUDGMENT (SECOND DEPT). ​

The Second Department, reversing Supreme Court in this foreclosure action, determined the plaintiff bank failed to demonstrate compliance with the notice requirements of RPAPL 1304 and therefore was not entitled to summary judgment: The plaintiff … failed to demonstrate, prima facie, its compliance with RPAPL 1304, in that it failed to establish proof of the […]

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IN THIS SLIP AND FALL CASE, THERE WAS NO EXPRESS INDEMNIFICATION AGREEMENT BETWEEN DEFENDANT GROCERY STORE AND THE FLO0R-CLEANING DEFENDANTS AND THERE WAS NO EVIDENCE THE FLOOR-CLEANING DEFENDANTS WERE NEGLIGENT OR CAUSED THE INJURY; THEREFORE THE GROCERY STORE’S INDEMNIFICATION AND CONTRIBUTION ACTIONS SHOULD HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the indemnification and contribution causes of action brought by the defendant grocery store (ShopRite) against the floor-cleaning defendants (Advance and Corporate) in this slip and fall case should have been dismissed. There was no express indemnification agreement. There was no showing Advance and Corporate were negligent. Safier v Wakefern […]

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ALTHOUGH THE TEN-YEAR DELAY BETWEEN THE JUDGMENT OF FORECLOSURE AND THE SALE OF THE PROPERTY WAS NOT WRONGFUL, THE DEFENDANT SHOULD NOT BE REQUIRED TO PAY THE INTEREST ACCRUED DURING THE DELAY (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined plaintiff in this foreclosure action was not entitled to interest for the ten years between the judgment of foreclosure and the sale of the property: … [T]he plaintiff explained that his delay in proceeding with the sale of the subject property was based upon his opinion that […]

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THE DECLARATORY JUDGMENT ACTION ALLEGING THE COUNTY TAX MAP VERIFICATION FEES CONSTITUTED UNAUTHORIZED TAXES SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the plaintiffs’ declaratory judgment action should not have been dismissed. Plaintiffs alleged that certain fees (tax map verification fees) charged by the county’s Real Property Tax Service Agency constituted taxes which were not legislatively authorized: … [T]he tax map verification fees were not expressly authorized by the […]

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DEFENDANT DID NOT PRESENT SUFFICIENT EVIDENCE TO WARRANT SUMMARY JUDGMENT IN THIS DRAM SHOP ACT CASE; POINTING TO GAPS IN PLAINTIFF’S PROOF WILL NOT MEET THE BURDEN OF PROOF AT THE SUMMARY JUDGMENT STAGE (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined defendant in this Dram Shop Act did not present enough evidence to warrant summary judgment, noting that pointing to gaps in plaintiffs’ proof never sufficient: Defendant failed to establish its prima facie entitlement to summary judgment dismissing plaintiffs’ claim based on violation of the Dram Shop Act (General […]

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THE DIRECT BENEFITS THEORY OF ESTOPPEL WAS NOT APPLICABLE TO PLAINTIFF, A NONSIGNATORY TO THE AGREEMENT WITH THE ARBITRATION CLAUSE; THE PLAINTIFF, THERFORE, COULD NOT BE COMPELLED TO ARBITRATE (FIRST DEPT).

The First Department, reversing Supreme Court, determined a nonsignatory, the plaintiff Rosh, Inc., could not be compelled to arbitrate pursuant to the direct benefits theory of estoppel: The court should have denied the motion to compel arbitration of Rosh’s claims because Rosh is a nonsignatory to the agreement that contains the arbitration clause and defendants failed to […]

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PLAINTIFF PASSENGER SUED THE DRIVER WHO STRUCK A CAR FROM BEHIND; PLAINTIFF WAS NOT ENTITLED TO SUMMARY JUDGMENT; THERE WAS NO EVIDENCE THE DRIVER FAILED TO MAINTAIN A SAFE DISTANCE IN VIOLATION OF THE VEHICLE AND TRAFFIC LAW (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff passenger was not entitled to summary judgment in this traffic accident case. The defendant, Rodriguez, was driving the car in which plaintiff was a passenger when it stuck another car driven by Espada. Plaintiff did not demonstrate that Rodriguez did not maintain a safe distance from the […]

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