You are here: / Bruce Freeman

Entries by Bruce Freeman

, ,

WHERE A COMPLAINT IS DISMISSED WITHOUT A MOTION ON NOTICE, AN APPEAL IS NOT AVAILABLE BUT A MOTION TO VACATE THE DISMISSAL IS APPROPRIATE; THE BANK IN THIS FORECLOSURE ACTION SOUGHT AN ORDER OF REFERENCE WITHIN ONE YEAR OF THE DEFAULT; THEREFORE THE BANK DID NOT ABANDON THE ACTION (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined plaintiff bank in this foreclosure action demonstrated it had not abandoned the action by moving for an order of reference within one year of the default judgment. The Second Department noted that where, as here, the dismissal of the complaint was not based upon a motion on notice, […]

PLAINTIFF, AT HER DEPOSITION, COULD NOT IDENTIFY THE CAUSE OF HER STAIRWAY SLIP AND FALL; COMPLAINT DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff in this stairway slip and fall, based upon her deposition testimony, could not identify the cause of her fall which required dismissal of the complaint: “… [A] defendant can make its prima facie showing of entitlement to judgment as a matter of law by establishing that the […]

LOANING PLAINTIFF’S DECEDENT A CAR WITH A BROKEN FUEL GAUGE WAS NOT A PROXIMATE CAUSE OF PLAINTIFF’S DECEDENT’S DEATH; THE CAR RAN OUT OF GAS AND PLAINTIFF’S DECEDENT PULLED OVER ONTO THE SHOULDER OF A TWO-LANE ROAD; SHE WAS STRUCK BY A HIT AND RUN DRIVER WHILE PUTTING GAS IN THE CAR WITH A GAS CAN (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the negligence ascribed to the defendant in this fatal traffic-accident case was not a proximate cause of the accident. Defendant allegedly loaned a car with a broken fuel gauge to plaintiff’s decedent. The car ran out of gas on a two-lane highway and plaintiff’s decedent pulled the car […]

,

ALTHOUGH THE BANK IN THIS FORECLOSURE ACTION SUBMITTED AN AFFIDAVIT TO DEMONSTRATE DEFENDANT’S DEFAULT, AND THE AFFIDAVIT QUOTED FROM THE RELEVANT BUSINESS RECORDS, THE RECORDS THEMSELVES WERE NOT SUBMITTED, RENDERING THE AFFIDAVIT HEARSAY (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the band did not prove defendant defaulted on the note in this foreclosure action. The affidavit which discussed the relevant business records (apparently quoting from them) was hearsay. The business records themselves were not submitted: While the affidavit submitted by the plaintiff made the requisite showing that […]

THE MAJORITY CONCLUDED PLAINTIFF WAS DOING ROUTINE MAINTENANCE WHICH WAS NOT PART OF A CONSTRUCTION OR RENOVATION PROJECT WHEN HE WAS ELECTROCUTED AND FELL FROM A LADDER; THEREFORE THE LABOR LAW 240(1) AND 241(6) CAUSES OF ACTION WERE DISMISSED; THE TWO-JUSTICE DISSENT ARGUED PLAINTIFF WAS “CLEANING” WITHIN THE MEANING OF LABOR LAW 240(1) AND WAS DOING CONSTRUCTION OR RENOVATION WORK WITHIN THE MEANING OF LABOR LAW 241(6) (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the work plaintiff was doing was not covered by Labor Law 240(1) or 241(6). Primosch v Peroxychem, LLC, 2023 NY Slip Op 04285, Fourth Dept 8-11-23. The Fourth Department concluded plaintiff’s work was routine maintenance, not cleaning covered by Labor Law 240(10, and was not done in connection with […]

, ,

THE GRANDPARENTS’ PETITION FOR VISITATION SHOULD NOT HAVE BEEN DENIED ABSENT A FULL BEST INTERESTS OF THE CHILD HEARING (FOURTH DEPT). ​

The Fourth Department, reversing Family Court, determined the court should not have dismissed the grandparents’ petition for visitation before holding a best interests of the child hearing: … [T]he court erred in granting respondents’ motion and in terminating the hearing before petitioners had completed the presentation of their case … . “[E]ven where . . […]

, ,

THE CHILD HAD LIVED WITH HIS GRANDPARENTS FOR HIS ENTIRE LIFE; THE GRANDPARENTS DEMONSTRATED EXTRAORDINARY CIRCUMSTANCES NECESSITATING A BEST INTERESTS OF THE CHILD HEARING PRIOR TO RULING ON MOTHER’S PETITION FOR A MODIFICATION OF CUSTODY; TWO-JUSTICE DISSENT; MATTER REMITTED FOR A HEARING (FOURTH DEPT). ​

The Fourth Department, reversing Family Court, over a two-justice dissent, determined the grandparents established extraordinary circumstances necessitating a best interests hearing before a ruling on mother’s request for a modification of custody. Mother sought to regain custody of the child who was eight years old and had resided with the grandparents for his entire life: […]

THE OWNER OF LAND HAS AN ABSOLUTE PROPERTY RIGHT IN THE SURFACE WATERS COLLECTED ON THAT LAND AND CAN DIVERT IT BEFORE IT FLOWS INTO A DEFINITE WATER COURSE (A STREAM, FOR EXAMPLE) (FOURTH DEPT).

The Fourth Department, in this dispute over water rights, noted that the Monroe County Water Authority (MCWA) owned surface water on its land and could divert it before it entered a definite water course: … [W]e agree with MCWA that the court erred in determining that plaintiffs ( a golf course) have riparian rights to […]

, , , ,

THE ORDER DENYING DEFENDANTS THE ABILITY TO ASSERT CPLR ARTICLE 16 DEFENSES IS APPEALABLE; DEFENDANTS SHOULD NOT HAVE BEEN PRECLUDED FROM ASSERTING THE CPLR ARTICLE 16 DEFENSES ATTRIBUTING LIABILITY IN THIS MEDICAL MALPRACTICE ACTION TO NON-PARTIES (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined that defendants in this medical malpractice action should not have been precluded from asserting the negligence of non-parties (CPLR article 16 defenses) as an affirmative defenses. The court noted that, although the a ruling on a motion in limine is generally not appealable, a ruling on a motion […]

,

THE SEARCH WARRANT FOR DEFENDANT’S CELL PHONE DID NOT MEET THE PARTICULARITY REQUIREMENT, THE EVIDENCE GLEANED FROM THE CELL PHONE SHOULD HAVE BEEN SUPPRESSED; NEW TRIAL ORDERED; KIDNAPPING SECOND DEGREE IS AN INCLUSORY CONCURRENT COUNT OF KIDNAPPING SECOND DEGREE AS A SEXUALLY MOTIVATED FELONY, THE COUNTS MUST BE SUBMITTED TO THE JURY IN THE ALTERNATIVE (FOURTH DEPT). ​

he Fourth Department, reversing defendant’s conviction, determined the search warrant for defendant’s cell phone was overly broad. Therefore the evidence derived from the cell phone should have been suppressed. The court noted that kidnapping in the second degree is an inclusory concurrent count of kidnapping in the second degree as a sexually motivated felony … […]

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