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Entries by Bruce Freeman

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THE STRUCTURED ACQUISITION OF A LIMITED LIABILITY COMPANY DID NOT CONSTITUTE A DISSOLUTION OF THE COMPANY UNDER THE TERMS OF THE OPERATING AGREEMENT (SECOND DEPT).

The First Department, in a full-fledged opinion by Justice Friedman, reversing (modifying) Supreme Court, determined the operating agreement was not breached. The facts and issues are too complex to fairly summarize here: The primary question on this appeal is whether an acquisition of a limited liability company, which transaction was structured as a sale of […]

DEFENDANT-PETITIONER WAS ENTITLED TO RELEASE FROM PRE-INDICTMENT CUSTODY PURSUANT TO CPL 30.30 (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the habeas corpus petition seeking defendant-petitioner’s release from pre-indictment custody should have been granted: … [P]etitioner demonstrated that more than 90 days elapsed from the commencement of the defendant’s confinement on April 27, 2023, until July 31, 2023, the date the petitioner made an application to the Supreme […]

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THE BANK DID NOT DEMONSTRATE STANDING TO BRING THE FORECLOSURE ACTION AND DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE-OF-DEFAULT PROVISION IN THE MORTGAGE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank in this foreclosure action did not demonstrate standing to bring the action and did not demonstrate it complied with the notice-of-default requirement in the mortgage: … [T]he plaintiff failed to establish … that it had standing to commence this action. Although the plaintiff attached to the […]

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THE MAJORITY DETERMINED THE DEFENDANT DEVELOPED THE RELATIONSHIP WITH THE COMPLAINANT FOR THE PRIMARY PURPOSE OF VICTIMIZING HER AND THEREFORE 20 POINTS WERE PROPERLY ASSESSED UNDER RISK FACTOR 7; THE COMPREHENSIVE DISSENT ARGUED THERE WAS A PRE-EXISTING RELATIONSHIP WITH THE COMPLAINANT WHICH RENDERD RISK FACTOR 7 INAPPLICABLE UNDER THE COURT OF APPEALS RULING IN COOK (SECOND DEPT).

The Second Department determined, over a comprehensive dissent, that defendant was properly assessed 20 points because his relationship with the 13-year-old victim was deemed to have been established for the primary purpose of victimizing her. The dissent argued there was a pre-existing relationship and, therefore, defendant did not develop the relationship for the purpose of […]

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PLAINTIFF WAS ELIGIBLE FOR RELEASE FROM JAIL PURSUANT TO CPL 180.80 BUT WAS KEPT INCARCERATED FOR AN ADDITIONAL 2 1/2 MONTHS; PLAINTIFF’S FALSE IMPRISONMENT AND NEGLIGENCE CAUSES OF ACTION SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Ford, reversing Supreme Court, determined plaintiff’s causes of action for false imprisonment and negligence should not have been dismissed. Plaintiff sued the town because he was not released from custody pursuant to Criminal Procedure Law 180.80: CPL 180.80 “requires the release of individuals being held in […]

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IN THIS STAIRWAY SLIP AND FALL CASE, PLAINTIFF WAS ENTITLED TO DISCOVERY OF PRE-ACCIDENT REPAIRS BUT NOT POST-ACCIDENT REPAIRS (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court in this stairway slip and fall case, determined plaintiff was entitled to discovery of pre-accident repairs, but not to post-accident repairs: Supreme Court providently exercised its discretion in directing the defendant to produce repair-related records for the subject stairway, and a list of all employees and contractors that […]

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THE COMPLAINT AGAINST THE LESSOR OF THE CAR INVOLVED IN THE TRAFFIC ACCIDENT SHOULD NOT HAVE BEEN DISMISSED PURSUANT TO THE GRAVES AMENDMENT; DEFENDANT LESSOR DID NOT DEMONSTRATE THE ALLEGATION THE CAR WAS NEGLIGENTLY MAINTAINED WAS “NOT A FACT AT ALL” (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined plaintiff’s cause of action against the lessor of the car involved in the accident (Rallye) should not have been dismissed pursuant to the Graves Amendment. Defendant lessor did not demonstrate the allegation the car was negligently maintained was “not a fact at all:” “Pursuant to the Graves Amendment […]

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PLAINTIFF IN THIS FORECLOSURE ACTION DID NOT DEMONSTRATE “GOOD CAUSE” FOR AN EXTENSION OF TIME FOR SERVICE OF PROCESS, BUT DID DEMONSTRATE ENTITLEMENT TO AN EXTENSION IN THE “INTEREST OF JUSTICE” (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank’s motion to extend the time for service of process in this foreclosure action should have been granted. Although plaintiff did not demonstrate “good cause” for the failure to timely serve, the motion met the criteria for an extension in the interest of justice: “Pursuant to CPLR […]

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DEFENDANT’S ANSWER IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN STRUCK FOR SPOLIATION OF EVIDENCE; VIDEO OF A FEW SECONDS BEFORE AND AFTER THE FALL WAS PRESERVED, BUT THE REST OF THE VIDEO WAS OVERWRITTEN (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s answer in this slip and fall case should not have been struck for spoliation of evidence. Defendant preserved video of the slip and fall which happened during a school dance—a few seconds before and after the fall. But the rest of the video was overwritten 21 days after […]

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