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Entries by Bruce Freeman

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TO CONSIDER A LATE MOTION TO DISMISS, THE PARTIES MUST FIRST BE PUT ON NOTICE THE MOTION WILL BE TREATED AS A SUMMARY JUDGMENT MOTION (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined the post answer motion to dismiss should not have been heard because there was no notice the motion would be treated as a summary judgment: By summons and complaint dated July 8, 2021, plaintiff commenced this action against defendant to recover approximately $360,000 in unpaid counsel fees. Defendant […]

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A CONFLICT BETWEEN TWO PROVISIONS OF THE POSTNUPTIAL AGREEMENT REQUIRED A TRIAL TO RESOLVE (FIRST DEPT). ​

The First Department, reversing (modifying) Supreme Court, determined there was a conflict between two provisions of the postnuptial agreement which could only be resolved by a trial: “When parties set down their agreement in a clear, complete document, their writing should as a rule be enforced according to its terms” … . If a contract’s […]

WHERE THERE IS A WRITTEN CONTRACT, AN ACTION FOR UNJUST ENRICHMENT WILL NOT LIE AGAINST THIRD-PARTY NONSIGNATORIES (FIRST DEPT).

The First Department, reversing Supreme Court, determined that the existence of a contract precludes an action for unjust enrichment brought against a third-party nonsignatory: Plaintiff’s cause of action for unjust enrichment is barred by the written agreement between plaintiff and defendant condominium sponsor, despite the fact that appellants are nonsignatories to that agreement … . […]

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THE PARTIES’ STIPULATION REQUIRED PLAINTIFF TO FURNISH PAY STUBS AS A PREREQUISITE FOR HER RECEIVING CHILD SUPPORT; SUPREME COURT SHOULD NOT HAVE HELD THAT INFORMAL TIMESHEETS WERE THE FUNCTIONAL EQUIVALENT OF PAY STUBS (FIRST DEPT).

The First Department, reversing Supreme Court, determined the requirement in the parties’ stipulation that, in order to receive child support, defendant must demonstrate her employment by furnishing pay stubs was not met by furnishing time sheets: The parties’ stipulation of August 24, 2021, provides in pertinent part that plaintiff will pay defendant $2,000 per month […]

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PETITIONER-PEDESTRIAN ESTABLISHED THE IDENTITY OF THE DRIVER WHO STRUCK HER COULD NOT BE ASCERTAINED THROUGH REASONABLE EFFORTS; THEREFORE SHE COULD SUE THE MOTOR VEHICLE ACCIDENT INDEMNIFICATION CORPORATION (MVAIC) (FIRST DEPT).

The First Department, reversing Supreme Court, determined petitioner-pedestrian demonstrated the driver who violated the Vehicle and Traffic Law, struck her and fled the scene could not be identified. Therefore she was entitled to sue the Motor Vehicle Accident Indemnification Corporation (MVAIC). The court noted that, although petitioner relied on a hearsay police report, the report could be […]

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THE EVIDENCE DID NOT SUPPORT THE FINDING RESPONDENT COMMITTED THE FAMILY OFFENSE OF HARASSMENT SECOND DEGREE (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined the evidence did not support the family offense of harassment second degree: “A petitioner bears the burden of proving by a preponderance of the evidence that respondent committed a family offense” … . To establish that respondent committed acts constituting harassment in the second degree, petitioner was required […]

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MOTHER WAS PROPERLY FOUND TO HAVE DEFAULTED IN THIS CUSTODY MATTER; MOTHER’S ATTORNEY APPEARED BUT DECLINED TO PARTICIPATE; ALTHOUGH AN ORDER ENTERED UPON DEFAULT CANNOT BE APPEALED, CONTESTED MATTERS DETERMINED BY THE TRIAL COURT, HERE WHETHER MOTHER’S ATTORNEY’S REQUEST FOR AN ADJOURNMENT SHOULD HAVE BEEN GRANTED, CAN BE CONSIDERED UPON APPEAL FROM THE ORDER (FOURTH DEPT). ​

The Fourth Department determined Family Court properly found that mother had defaulted in this custody case, despite the appearance of her attorney, who declined to participate. The Fourth Department noted that, although orders issued pursuant to a default are not appealable, contested issues addressed by the court prior to the order can be appealed: The […]

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EQUIVOCAL AND UNSUBSTANTIATED EVIDENCE OF DEFENDANT’S DRUG ABUSE WAS NOT ENOUGH TO JUSTIFY THE 15-POINT DRUG-ABUSE ASSESSMENT UNDER SORA (FOURTH DEPT).

The Fourth Department, reversing County Court, determined 15 points should not have been assessed against the defendant under SORA for drug abuse. The evidence was too weak: Here, we conclude that the People failed to prove by the requisite clear and convincing evidence that defendant had a history of substance abuse. Although the case summary […]

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THE POLICE OFFICER INJURED IN THE TRAFFIC ACCIDENT AND THE CITY SEEKING RECOVERY OF PAYMENTS MADE STEMMING FROM THE OFFICER’S INJURY MUST SHARE THE $100,000 “PER PERSON” INSURANCE-POLICY LIMIT (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court, determined the police officer injured in a car accident and the city suing for payments made for the officer’s salary and medical expenses had to share the $100,000 “per person”  policy-limit in the Safeco insurance policy: … [T]here is a $100,000 policy limit for “each person” sustaining bodily injury. […]

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A COURT DOES NOT LOSE JURISDICTION OVER SENTENCING A DEFENDANT PURSUANT TO CRIMINAL PROCEDURE LAW 390.30 IF MORE THAN A YEAR ELAPSES BETWEEN CONVICTION AND SENTENCING (FOURTH DEPT).

The Fourth Department determined County Court did not lose jurisdiction to sentence defendant because more than a year elapsed between conviction and sentencing: CPL 390.30 provides in relevant part that, “[i]n any case where the court determines that a defendant is eligible for a sentence of probation, the court, after consultation with the prosecutor and […]

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