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Entries by Bruce Freeman

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ALTHOUGH THE PLAINTIFF’S FAILURE TO COMPLY WITH DISCOVERY ORDERS WAS WILLFUL AND CONTUMACIOUS, PRECLUSION OF EXPERT EVIDENCE IN THIS MEDICAL MALPRACTICE CASE WAS TOO SEVERE A SANCTION; PLAINTIFF’S ATTORNEY FINED $5000 (THIRD DEPT).

The Third Department, reversing Supreme Court, in a full-fledged opinion by Justice Clark, determined preclusion of evidence in this medical malpractice case as a sanction for failure to provide discovery was too severe a sanction. The appellate court imposed a monetary sanction on plaintiff’s attorney: Supreme Court found that plaintiff’s trial counsel engaged in willful […]

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PLAINTIFF IN THIS FORECLOSURE ACTION TIMELY COMMENCED THE ACTION PURSUANT TO THE SIX-MONTH EXTENSION OF THE STATUTE OF LIMITATIONS PROVIDED BY CPLR 205-A (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the foreclosure action was timely commenced pursuant to the six-month extension of the statute of limitations provided by CPLR 205-a: As part of the recently enacted Foreclosure Abuse Prevention Act … , a new section, CPLR 205-a, which governs the termination of certain actions, including an action upon […]

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THE “NOTICE OF INTENT TO FORECLOSE” FELL SHORT OF AN ACCELERATION OF THE MORTGAGE DEBT AND DID NOT TRIGGER THE STATUTE OF LIMITATIONS FOR THE FORECLOSURE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion pursuant to RPAPL 1501(4) to cancel and discharge a mortgage should not have been granted. The ground for the motion was the claim the statute of limitations for a foreclosure action had run. But the Second Department determined the “Notice of Intent to Foreclose” did not […]

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​ PLAINTIFF’S FAILURE TO PROVIDE DISCOVERY AND A BILL OF PARTICULARS WARRANTED DISMISSAL OF THE COMPLAINT AS A SANCTION (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined defendant’s motion to dismiss the complaint by plaintiff Morales based upon Morales’s failure to provide discovery and a bill of particulars should have been granted: … Morales’s willful and contumacious conduct can be inferred from her repeated failures over an extended period of time to comply with […]

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THE WRONG MAILING DATE IN AN AFFIDAVIT OF SERVICE CANNOT BE CORRECTED IN AN AMENDED AFFIDAVIT; MATTER REMITTED FOR A HEARING ON DEFENDANT’S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION (SECOND DEPT).

The Second Department, reversing Supreme Court and remitting for a hearing, determined a mistake in an affidavit of service of the summons and complaint (wrong mailing date) could not be corrected by an amended affidavit. Therefore a hearing on defendant’s motion to dismiss for lack of personal jurisdiction was necessary: … [S]imilar to an erroneous […]

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A JUDICIAL FORECLOSURE SALE SHOULD BE SET ASIDE IF THERE IS DOUBT ABOUT THE TITLE (HERE SUSPICION A DEED WAS FORGED); CAVEAT EMPTOR (BUYER BEWARE) IS NOT STRICTLY APPLIED TO A JUDICIAL SALE AT AUCTION (SECOND DEPT). ​

The Second Department, reversing Supreme Court and setting aside the judicial foreclosure sale, determined the possibility a deed was forged cast suspicion on the fairness of the sale. The court noted that caveat emptor (buyer beware) is not strictly applied to a judicial sale: “‘[A] purchaser at a judicial sale should not be compelled by […]

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THE CLAIM IN THIS CHILD VICTIMS ACT ACTION SUFFICIENTLY STATED THE TIME AND NATURE OF THE SEXUAL ABUSE ALLEGEDLY OCCURRING DURING FOSTER CARE MORE THAN 40 YEARS AGO; THE PLEADING REQUIREMENTS IN THE COURT OF CLAIMS AND THE MECHANICS AND PURPOSE OF THE CHILD VICTIMS ACT CONCISELY EXPLAINED (SECOND DEPT). ​

The Second Department, reversing the Court of Claims, determined the claim in this Child Victims Act action, alleging abuse during foster care more than 40 years ago, sufficiently stated the time and nature of the abuse. The decision includes a clear, concise description of the pleading requirement in the Court of Claims, and the mechanics […]

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ALTHOUGH PLAINTIFF FELL THROUGH THE FLOOR OF THE BUILDING UNDER RENOVATION WHEN HE WENT IN TO GET A TOOL FOR HIS WORK ON AN ADJACENT BUILDING, HE WAS PERFORMING DUTIES ANCILLARY TO THE CONSTRUCTION WORK AND WAS THEREFORE ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE OF ACTION; HEARSAY EVIDENCE IN THE MEDICAL RECORDS WAS NOT ENOUGH TO RAISE A QUESTION OF FACT (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined plaintiff was entitled to summary judgment on his Labor Law 240(1) cause of action. Plaintiff was hired to remove carpet from a building adjacent to the building to the building undergoing renovation (the carpet had been damaged by flooding in the building being renovated), Plaintiff went inside […]

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THE RIGHT TO SEEK DISMISSAL OF THE FORECLOSURE ACTION PURSUANT TO CPLR 3215 (C) BASED ON PLAINTIFF BANK’S FAILURE TO SEEK A DEFAULT JUDGMENT WITHIN A YEAR WAS WAIVED BY DEFENDANT’S THREE-YEAR DELAY IN BRINGING THE MOTION TO DISMISS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant, by waiting three years, waived the seek dismissal of the foreclosure action based on plaintiff bank’s failure to move for a default judgment within one year: “A ‘defendant may waive the right to seek dismissal pursuant to [CPLR 3215(c)] by his or her conduct’” … . Here, […]

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DEFENDANT WAS OUTSIDE HIS RESIDENCE WHEN HE WAS ARRESTED AND A PROTECTIVE SWEEP WAS CONDUCTED INSIDE DEFENDANT’S RESIDENCE; ITEMS OBSERVED IN THE RESIDENCE WERE LATER SEIZED PURSUANT TO A SEARCH WARRANT; BECAUSE THE POLICE HAD NO REASON TO SUSPECT OTHERS WERE PRESENT IN THE RESIDENCE, THE PROTECTIVE SWEEP OF THE RESIDENCE WAS NOT JUSTIFIED AND THE OBSERVED ITEMS SHOULD HAVE BEEN SUPPRESSED (THIRD DEPT).

The Third Department held that items observed by the police during a “protective sweep” of his residence should have been suppressed. At the time of defendant’s arrest and the protective sweep defendant was outside of his residence. The police had no reason to believe others were inside the residence: Upon a lawful arrest, the police […]

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