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Entries by Bruce Freeman

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A TEACHER MAY NOT ACCUMULATE CREDIT TOWARD TENURE IN ONE SCHOOL DISTRICT FOR WORK AS A SUBSTITUTE TEACHER IN ANOTHER DISTRICT (SECOND DEPT). ​

The Second Department, in a full-fledged opinion by Justice Ford, determined a teacher may not accumulate credit towards tenure from working as a substitute teacher in a different district: The narrow issue presented on this appeal, apparently one of first impression for an appellate court in this State, is whether a teacher may accumulate credit […]

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THE NONHEARSAY ALLEGATIONS IN THE JUVENILE DELINQUENCY PETITION DID NOT SUFFICIENTLY DEMONSTRATE THE “PHYSICAL INJURY” ELEMENT OF ASSAULT THIRD RENDERING THE PETITION JURISDICTIONALLY DEFECTIVE (SECOND DEPT). ​

The Second Department, reversing (modifying) Family Court in this juvenile delinquency proceeding, determined the factual part of the petition alleging an act which would constitute assault third if done by an adult was jurisdictionally defective because it did not set forth every element of the offense. Specifically the petition did not sufficiently allege “physical injury:” […]

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A STORM DRAIN ALLEGEDLY CAUSED FLOODING ON PLAINTIFFS’ PROPERTY; THE NEGLIGENT DESIGN CAUSE OF ACTION AGAINST THE VILLAGE ACCRUED WHEN THE STORM DRAIN WAS INSTALLED, NOT WHEN THE FLOODING OCCURRED, AND WAS TIME-BARRED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court in this action stemming from flooding cause by a village storm drain, determined the negligent design cause of action against the village was time-barred because it accrued at the time the storm drain was constructed. However the trespass and negligent maintenance causes of action were timely: General Municipal […]

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ALTHOUGH DEFENDANT IN THIS FORECLOSURE ACTION DID NOT ASSERT THE AFFIRMATIVE DEFENSES OF LACK OF STANDING AND LACK OF PERSONAL JURISDICTION IN THE ANSWER, THE DEFENSES WERE NOT WAIVED AND THE MOTION TO AMEND THE ANSWER SHOULD HAVE BEEN GRANTED; EVEN THOUGH THE STATUTE PROVIDING THAT THE LACK OF STANDING DEFENSE WAS NOT WAIVED WAS NOT ENACTED AT THE TIME THE MOTION WAS DECIDED, THE APPELLATE COURT CAN APPLY THE LAW AS IT EXISTS AT THE TIME OF THE APPELLATE DECISION (SECOND DEPT).

The Second Department, reversing Supreme Court in this foreclosure action, determined the defendant’s failure to assert the plaintiff’s lack of standing and lack of personal jurisdiction in the answer did not waive those affirmative defenses, Defendant’s motion to amend the answer should have been granted. The court noted that even though RPAPL 1302-a, which provides […]

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HERE IT WAS NOT DEMONSTRATED THAT THE JUDGE LAID OUT THE SPECIFIC CONDUCT DEMONSTRATING A NEGLECT TO PROSECUTE AND IT WAS NOT DEMONSTRATED THE PLAINTIFF WAS AFFORDED NOTICE AND AN OPPORTUNITY TO BE HEARD IN OPPOSITION TO DISMISSAL FOR NEGLECT TO PROSECUTE (SECOND DEPT).

​The Second Department, reversing Supreme Court, determined compliance with the “specific conduct” and “notice” requirements of CPLR 3216 had not been demonstrated. Therefore, he motion to dismiss for neglect to prosecute should not have been granted: Effective January 1, 2015, the legislature amended, in several significant respects, the statutory preconditions to dismissal under CPLR 3216″ […]

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IF THE JUDGE DOES NOT LAY OUT IN DETAIL THE SPECIFIC CONDUCT JUSTIFYING A DISMISSAL OF AN ACTION FOR NEGLECT TO PROSECUTE, THE REQUIREMENTS FOR DISMISSAL PURSUANT TO CPLR 3216 ARE NOT MET AND THE SIX-MONTH PERIOD FOR THE FILING OF ANOTHER COMPLAINT (CPLR 205(A)) IS AVAILABLE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the requirements for dismissing the first complaint for neglect to prosecute were not met. Therefore the six-month extension of the statute of limitations applied and the second complaint was not time-barred: … [T]he complaint in the prior action was not dismissed for “neglect to prosecute” within the meaning […]

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ALTHOUGH THE STATUTE OF LIMITATIONS STARTED RUNNING WHEN THE FORECLOSURE ACTION WAS FIRST BROUGHT, THE SUBSEQUENT LOAN MODIFICATION AGREEMENT, ENTERED WHILE THE FORECLOSURE ACTION WAS STILL PENDING, STARTED THE STATUTE OF LIMITATIONS RUNNING ANEW (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that, although the six-year statute of limitations for the original foreclosure action had run, the loan modification agreement, which was entered after the foreclosure action was started and while it was still pending, restarted the statute of limitations: RPAPL 1501(4) provides, in pertinent part, that “[w]here the period allowed […]

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DEFENDANTS’ MOTION TO COMPEL PLAINTIFF TO ALLOW THE EX PARTE INTERVIEW OF THE NONPARTY TREATING PHYSICIAN’S ASSISTANT ABOUT PLAINTIFF’S EXPLANATION OF THE CAUSE OF HER SLIP AND FALL WAS PROPERLY DENIED (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Maltese, in a matter of first impression, determined defendants’ motion to compel plaintiff to authorize an ex parte interview of the nonparty physician’s assistant (Molina) who treated plaintiff after her slip and fall was properly denied. Defendants sought to interview Molina about plaintiff’s statement concerning the […]

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A LEGAL MALPRACTICE COMPLAINT WHICH ALLEGES CONCLUSORY AND SPECULATIVE DAMAGES WILL BE DISMISSED FOR FAILURE TO STATE A CAUSE OF ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the legal malpractice complaint did not state a cause of action and should have been dismissed pursuant to CPLR 3211(a). Conclusory and speculative allegations of damages are not sufficient: “‘To state a cause of action to recover damages for legal malpractice, a plaintiff must allege: (1) that the attorney […]

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THE APPLICATION FOR A SEARCH WARRANT WAS BASED ON INFORMATION PROVIDED BY AN INFORMANT WHO WAS NOT DEMONSTRATED TO BE RELIABLE; DEFENDANT’S SUPPRESSION MOTION SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion to suppress the firearm found in a search of his apartment should have been granted. The application for the search warrant was supported by uncorroborated information from an informant who was not shown to be reliable: In support of the search warrant application, a police officer […]

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