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Entries by Bruce Freeman

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IN THESE ACTIONS BY INVESTORS AGAINST TRUSTEES STEMMING FROM THE COLLAPSE OF RESIDENTIAL MORTGAGE-BACKED SECURITIES (RMBS) THE COURT HELD (1) CLAIMS AGAINST TRUSTEES ARE NOT PROHIBITED BY A NO-ACTION CLAUSE (2) THE TRUSTEES WERE NOT REQUIRED TO ENFORCE REPURCHASE OBLIGATIONS AND (3) THE TORT CLAIMS WERE DUPLICATIVE OF THE BREACH OF CONTRACT CLAIMS (CT APP).

​The Court of Appeals, reversing (modifying) the appellate division, over two dissents, in these actions by investors against the trustees stemming from the collapse of residential mortgage-backed securities [RMBS], determined (1) claims against a trustee are not precluded by a “no action” clause, (2) trustees are not required to enforce repurchase obligations, and (3) the […]

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IN THIS DOG-BITE CASE, DEFENDANT DEMONSTRATED SHE WAS NOT AWARE OF HER DOG’S VICIOUS PROPENSITIES; PLAINTIFF’S ALLEGATIONS IN RESPONSE TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT DID NOT RAISE A QUESTION OF FACT ON THAT ISSUE; DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN GRANTED (THIRD DEPT).

The Third Department, reversing Supreme Court, determined defendant dog-owner’s motion for summary judgment in this dog-bite case should have been granted. Defendant made a prima facie showing she was not aware of the dog’s vicious propensities. Plaintiff did not raise a question of fact on that issue: Even when viewing the evidence in the light most […]

THE INCLUSORY CONCURRENT COUNTS MUST BE DISMISSED AND THE RELATED SENTENCES VACATED (THIRD DEPT).

The Third Department determined the inclusory concurrent counts must dismissed and the related sentences vacated: Modification of the judgment is required due to defendant’s conviction of inclusory concurrent charges. ” ‘With respect to inclusory concurrent counts, a verdict of guilty upon the greatest count submitted is deemed a dismissal of every lesser count submitted’ ” […]

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ONCE THE APPELLATE DIVISION DETERMINED A SORA RISK FACTOR DID NOT APPLY, BRINGING DEFENDANT’S RISK ASSESSMENT FROM A LEVEL THREE TO A LEVEL TWO, THE APPELLATE COURT HAD THE AUTHORITY TO REMIT THE MATTER TO COUNTY COURT TO CONSIDER, FOR THE FIRST TIME, WHETHER AN UPWARD DEPARTURE WAS WARRANTED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Halligan, over a dissenting opinion, determined that the appellate division appropriately remitted the matter to County Court after the appellate court reduced the risk assessment by 10 points because the People conceded the absence of forcible compulsion. Eliminating that 10 point assessment resulted in reducing […]

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EVEN THOUGH THE SORA RISK LEVEL CAME OUT THE SAME (115 POINTS), THE JUDGE SHOULD NOT HAVE FIRST REMOVED 15 POINTS WHICH WERE BASED ON AN INAPPLICABLE RISK FACTOR AND THEN ADDED 15 POINTS BASED ON A RISK FACTOR NOT INCLUDED IN THE RISK ASSESSMENT; THAT CONSTITUTED AN UPWARD DEPARTURE WITHOUT NOTICE (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Rivera, with a three-judge concurrence, reversing the appellate division, determined the judge in the SORA risk-level proceeding should not have departed from the presumptive risk level based on an issue of which the defendant was not given 10 days notice. The risk assessment included 15 […]

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THE LOBBY WAS MOPPED WITH A SOAP-LIKE SUBSTANCE AN HOUR BEFORE PLAINTIFF’S SLIP AND FALL AND PLAINTIFF TESTIFIED SHE NOTICED THE FLOOR WAS WET AND SMELLED OF CLEANING FLUID AFTER SHE FELL; THERE WAS A QUESTION OF FACT WHETHER DEFENDANT BUILDING OWNER CREATED THE DANGEROUS CONDITION (SECOND DEPT).

​The Second Department, reversing Supreme Court, determined there was a question of fact whether defendant property owner created the dangerous condition which caused plaintiff’s slip and fall. The area had been mopped with a soap-like substance an hour before the fall and plaintiff testified she noticed the floor was wet and smelled of cleaning fluid […]

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AFTER PLAINTIFFS’ CAR WAS SERVICED, A TIRE (WHEEL?) FELL OFF, CAUSING AN ACCIDENT; THE PLAINTIFFS WERE ENTITLED TO SUMMARY JUDGMENT ON THE RES IPSA LOQUITUR THEORY OF LIABILITY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the plaintiffs’ motion for summary judgment based upon the res ipsa loquitur theory of liability should have been granted. Plaintiffs’ car was inspected by defendant car dealership and the tires (wheels?) were removed and reattached. When plaintiff Kathleen Becchetti drove the car from the dealership one of the […]

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WHERE DEFENDANTS AVER SPECIFIC FACTS WHICH REBUT THE STATEMENTS IN THE PROCESS SERVER’S AFFIDAVIT, AN EVIDENTIARY HEARING ON WHETHER THE DEFENDANTS WERE SERVED WITH THE SUMMONS AND COMPLAINT IS REQUIRED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendants presented sufficient facts to rebut the presumption they were properly served with the summons and complaint, requiring a hearing: “Ordinarily, the affidavit of a process server constitutes prima facie evidence that the defendant was validly served” … Bare and unsubstantiated denials of receipt of the summons […]

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FAILURE TO INFORM THE DEFENDANT OF THE PERIOD OF POSTRELEASE SUPERVISION TO BE IMPOSED OR THE MAXIMUM POTENTIAL PERIOD OF POSTRELEASE SUPERVISION RENDERED THE GUILTY PLEA INVALID (SECOND DEPT). ​

The Second Department, vacating defendant’s guilty plea, determined the failure to inform defendant of the details of postrelease supervision rendered the plea invalid: … [A]t the plea proceeding, the County Court mentioned that the sentence would include postrelease supervision, but did not specify the period of postrelease supervision to be imposed, nor did the court […]

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DEFENDANT PEDIATRIC PRACTICE SUBMITTED EXPERT EVIDENCE PLAINTIFF’S ADOLESCENT SCOLIOSIS COULD NOT HAVE BEEN DIAGNOSED UNTIL A YEAR AFTER PLAINTIFF LEFT DEFENDANT’S CARE; PLAINTIFF’S EXPERT AFFIDAVIT DID NOT ADDRESS THAT ISSUE; DEFENDANT WAS ENTITLED TO SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant pediatric practice in this medical malpractice action was entitled to summary judgment. Plaintiff alleged the failure to diagnose scoliosis. Defendant submitted evidence that adolescent scoliosis could not have been diagnosed until a year after plaintiff left defendant’s care. Plaintiff’s expert’s affidavit did not address that issue: … […]

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