You are here: / Bruce Freeman

Entries by Bruce Freeman

,

​ A VOLUNTARY DISCONTINUANCE OF A FORECLOSURE ACTION NO LONGER STOPS THE STATUTE OF LIMITATIONS (SECOND DEPT). ​

The Second Department, reversing Supreme Court, noted that a voluntary discontinuance of a foreclosure action no longer stops the running of the statute of limitations: … [T]he six-year statute of limitations began to run on the entire debt in July 2011, when the plaintiff’s predecessor in interest commenced the 2011 action and elected to call […]

, , , ,

IN THIS MEDICAL MALPRACTICE ACTION, PLAINTIFF WAS ADMITTED WITH COVID, WAS TREATED FOR COVID AND DIED FROM COVID; PURSUANT TO THE EMERGENCY OR DISASTER TREATMENT PROTECTION ACT (EDTPA) THE DEFENDANT WAS IMMUNE FROM SUIT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant New York City Health and Hospitals Corporation was immune from a lawsuit stemming from a COVID-19-related death pursuant to the Emergency or Disaster Treatment Protection Act (EDTPA): … [T]he EDTPA initially provided, with certain exceptions, that a health care facility “shall have immunity from any liability, civil […]

,

THE PARTIES’ SEPARATION AGREEMENT DID NOT MAKE IT CLEAR THE PARTIES KNOWINGLY OPTED OUT OF THE LEVEL OF CHILD SUPPORT REQUIRED BY THE CHILD SUPPORT STANDARDS ACT (CSSA); THEREFORE THE SUPPORT PROVISIONS IN THE AGREEMENT ARE NOT ENFORCEABLE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the separation agreement did not include the required language indication the parties agree to opt out of the level of child support required by the Child Support Standards Act (CSSA): “Parties to a separation agreement are free to ‘opt out’ of the provisions of the CSSA so long […]

, , ,

DEFENDANT HAD THE RIGHT TO ASSIGNED COUNSEL IN THIS CIVIL CONTEMPT PROCEEDING STEMMING FROM DEFENDANT’S FAILURE TO PAY CHILD SUPPORT; THE JUDGE SHOULD HAVE CONDUCTED AN INQUIRY TO SEE IF DEFENDANT QUALIFIED FOR ASSIGNED COUNSEL PRIOR TO ISSUING THE ORDER OF COMMITMENT (SECOND DEPT).

The Second Department, reversing the order of commitment in this matrimonial case, noted that defendant faced possible jail time for civil contempt stemming from a failure to pay child support. Therefore defendant had a right to assigned counsel if found indigent. The judge should have have ascertained defendant’s financial condition: “In general, the respondent in […]

, , , , ,

BECAUSE INDIVIDUAL CONDOMINIUM OWNERS ARE RESPONSIBLE FOR THE INSTALLATION OF WINDOW GUARDS, THE DEFENDANT CONDOMINIUM DID NOT HAVE A DUTY TO INSTALL WINDOW GUARDS; THEREFORE THE CONDOMINIUM COULD NOT BE LIABLE FOR PLAINTIFFS’ DAUGHTER’S FALL FROM THE WINDOW UNDER THE FAILURE-TO-INSTALL THEORY; HOWEVER, THE CAUSE OF ACTION BASED UPON THE CONDOMINIUM’S FAILURE TO GIVE PLAINTIFFS NOTICE OF THE CITY’S WINDOW-GUARD REQUIREMENT SURVIVED THE DISMISSAL MOTION (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the negligence cause of action against the condominium (Cherry Tower) premised on the failure to install window guards should have been granted. Plaintiffs’ five-year-old daughter fell from the fifth floor window and died. Defendants submitted the deed to the condominium in support of their motion to dismiss. […]

, ,

CLAIMANT ALLEGED SHE WAS SEXUALLY ABUSED BY TWO NAMED COUNSELORS FROM 1976 – 1978; THE CLAIM SUFFICIENTLY STATED A CAUSE OF ACTION PURSUANT TO THE CHILD VICTIMS ACT (SECOND DEPT). ​

The Second Department, reversing the Court of Claims, determined the claim sufficiently stated a Child Victims Act cause of action stemming from claimant’s time in foster care from 1976 to 1978: In August 2021, the claimant commenced this claim pursuant to the Child Victims Act (see CPLR 214-g) against the defendant, inter alia, to recover […]

, ,

QUESTIONS OF FACT ABOUT WHO HAD THE GREEN LIGHT AND WHETHER DEFENDANT DRIVER SAW WHAT SHOULD HAVE BEEN SEEN PRECLUDED SUMMARY JUDGMENT IN THIS INTERSECTION TRAFFIC ACCIDENT CASE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined there were questions of fact which precluded summary judgment in favor of defendants in this intersection traffic accident case. Although plaintiffs’ car was struck when attempting a left turn across defendant’s oncoming lane, there was conflicting evidence about which party had the green light and whether defendant failed […]

,

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 […]

,

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 … . […]

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy