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You are here: Home1 / Bruce Freeman
Bruce Freeman

About Bruce Freeman

This author has yet to write their bio.
Meanwhile lets just say that we are proud Bruce Freeman contributed a whooping 6609 entries.

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Appeals, Foreclosure, Real Property Actions and Proceedings Law (RPAPL)

RPAPL 1304 AND 1302-a DO NOT APPLY WHERE THE LOAN SUBJECT TO FORECLOSURE IS NOT A “HOME LOAN;” COMPLIANCE WITH RPAPL 1303 IS A CONDITION PRECEDENT TO FORECLOSURE BUT FAILURE TO COMPLY CANNOT BE RAISED FOR THE FIRST TIME ON APPEAL; FAILURE TO PROVIDE NOTICE OF DEFAULT CANNOT BE RAISED FOR THE FIRST TIME ON APPEAL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment in this foreclosure action should have been granted. The Second Department noted: (1) RPAPL 1304 (re: notice) and 1302-a (re: standing) do not apply where the subject loan is not a “home loan” because the property was not defendant’s principal dwelling;  (2) compliance […]

February 24, 2021 /0 Comments/by Bruce Freeman
Real Property Law

DESPITE AMBIGUITIES IN THE DESCRIPTION OF THE EASEMENT, THE LOCATION CAN BE DETERMINED AND THE EASEMENT IS THEREFORE VALID (SECOND DEPT).

The Second Department, reversing Supreme Court (referee), determined the easement granted to defendants was valid. The easement related to an area which included a stucco wall and a covered wooden deck. The fact that the area may not have been accurately described by metes and bounds did not defeat the validity of the easement: “In […]

February 24, 2021 /0 Comments/by Bruce Freeman
Family Law

FATHER PROPERLY FOUND TO HAVE SEVERELY ABUSED ALL THE CHILDREN IN THE HOME; DESPITE THE WORDING OF THE SEVERE ABUSE STATUTE, WHICH USES THE TERM “PARENT,” THE COVERAGE OF THE STATUTE IS NOT LIMITED TO BIOLOGICAL CHILDREN (THIRD DEPT).

The Third Department, on February 23, 2021, vacated and replaced the opinion in this case which was originally released on February 18, 2021. In the vacated opinion the court held father could not be deemed to have severely abused the children who were not his biological children because the severe abuse statute uses the term […]

February 23, 2021 /0 Comments/by Bruce Freeman
Appeals, Criminal Law

THE JURY WAS NOT INSTRUCTED THAT ACQUITTAL ON THE TOP COUNT BASED ON THE JUSTIFICATION DEFENSE REQUIRED ACQUITTAL ON THE LESSER COUNT; ALTHOUGH DEFENSE COUNSEL DID NOT OBJECT TO THE JURY INSTRUCTIONS, THE APPEAL WAS CONSIDERED IN THE INTEREST OF JUSTICE (FIRST DEPT).

The First Department, reversing defendant’s attempted assault conviction, in a full-fledged opinion by Justice Manzanet-Daniels, determined the jury instructions did not make it clear that if defendant was acquitted of the top count (attempted assault first) based upon the justification defense, it must not consider the lesser count (attempted assault second). Defendant was acquitted of […]

February 23, 2021 /0 Comments/by Bruce Freeman
Civil Procedure, Foreclosure

A MORTGAGE DEBT CAN BE ACCELERATED ONLY BY AN UNEQUIVOCAL OVERT ACT, I.E., COMMENCING A FORECLOSURE ACTION OR A DOCUMENT MAKING IT CLEAR THE ENTIRE DEBT IS IMMEDIATELY DUE (NOT THAT IT WILL BE DUE IN THE FUTURE); A MORTGAGE DEBT CAN BE DE-ACCELERATED BY A VOLUNTARY DISCONTINUANCE, EVEN IF ITS PURPOSE IS TO STOP THE STATUTE OF LIMITATIONS FROM RUNNING (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, over a partial dissent and a concurrence, clarified how courts should handle two recurring issues in the sea of foreclosures which have inundated the courts: (1) how is the mortgage debt accelerated such that the entire amount becomes due and the six-year statute of […]

February 18, 2021 /0 Comments/by Bruce Freeman
Evidence, Family Law

ALTHOUGH FATHER WAS CULPABLE IN THE SEVERE BEATING BY MOTHER AND THE SUBSEQUENT DEATH OF THE CHILD, THE SEVERE ABUSE STATUTE APPLIES ONLY TO “PARENTS” AS OPPOSED TO “PERSONS LEGALLY RESPONSIBLE;” BECAUSE FATHER WAS NOT THE BIOLOGICAL FATHER OF THE CHILD BEATEN BY MOTHER, THE SEVERE ABUSE ADJUDICATION WAS REVERSED (THIRD DEPT).

ON FEBRUARY 23, 2021, THIS OPINION WAS VACATED AND THE SEVERE ABUSE FINDINGS AGAINST FATHER WERE UPHELD FOR ALL FOUR CHILDREN, NOT JUST FATHER’S BIOLOGICAL CHILDREN. REVISED DECISION-SUMMARY TO FOLLOW. The Third Department, in a full-fledged opinion by Justice Egan, reversing the severe abuse and derivative severe abuse adjudications against the father regarding mother’s biological […]

February 18, 2021 /0 Comments/by Bruce Freeman
Civil Procedure, Family Law

FAMILY COURT DID NOT FOLLOW THE PROCEDURE MANDATED BY THE UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT BEFORE RULING OHIO HAD JURISDICTION IN THE CUSTODY MATTER; MOTHER’S NEW YORK FAMILY OFFENSE PETITION SHOULD NOT HAVE BEEN DISMISSED BECAUSE NEW YORK HAS SUBJECT MATTER JURISDICTION OVER FAMILY OFFENSES OCCURRING IN OHIO (THIRD DEPT).

The Third Department, reversing Family Court, determined: (1) Family Court did not follow the procedure required by the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) before ruling that Ohio had jurisdiction based on father’s custody petition there and dismissing mother’s New York child support and custody petitions: and (2) Family Court should not have […]

February 18, 2021 /0 Comments/by Bruce Freeman
Civil Procedure, Social Services Law

CLASS CERTIFICATION FOR PERSONS DENIED PUBLIC ASSISTANCE BASED ON THE FAIR MARKET VALUE (FMV) OF THEIR VEHICLES WAS PROPER; THE OPT-IN PROCEDURE SHOULD BE USED TO IDENTIFY CLASS MEMBERS (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Lynch, determined the opt-in procedure should be used to identify members of the class who were denied public assistance based upon the fair market value (FMV) of their cars. The class certification by Supreme Court was found proper: In our prior decision regarding this matter, we […]

February 18, 2021 /0 Comments/by Bruce Freeman
Civil Procedure, Medical Malpractice, Negligence

OVERRULING PRECEDENT, THE FAILURE TO TIMELY FILE A CERTIFICATE OF MERIT IN A MEDICAL MALPRACTICE ACTION IS NOT A GROUND FOR DISMISSAL OF THE ACTION; IT IS NOT NECESSARY TO DEMONSTRATE THE ACTION HAS MERIT OR AN EXCUSE FOR THE FAILURE TO FILE IN SEEKING AN EXTENSION TO FILE THE CERTIFICATE (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Kennedy, overruling precedent, determined that the failure to timely file a certificate of merit pursuant to CPLR 3012-a in a medical malpractice action does not require dismissal of the action. In addition, a showing that the action has merit and an excuse for failing to file […]

February 18, 2021 /0 Comments/by Bruce Freeman
Evidence, Family Law

THE CHILD’S STATEMENTS ABOUT SEXUAL TOUCHING WERE ADEQUATELY CORROBORATED AND FATHER’S EXPLANATION FOR THE TOUCHING WAS NOT SUPPORTED BY THE EVIDENCE (THIRD DEPT).

The Third Department, reversing Family Court, determined the evidence supported sexual abuse and neglect by respondent-father. The child’s statements were sufficiently corroborated and the father’s explanation for touching the child was not credible: … [T]he proof of the child’s consistent descriptions of the inappropriate touching to various individuals, the child’s dramatic change in behavior, the […]

February 18, 2021 /0 Comments/by Bruce Freeman
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