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Entries by Bruce Freeman

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PLAINTIFF LANDLORD WAS NOT ABLE TO SHOW THE FULLY EXECUTED LEASE WAS EVER DELIVERED TO DEFENDANT TENANT; THEREFORE THE LANDLORD WAS NOT ENTITLED TO SUMMARY JUDGMENT BASED UPON THE TERMS OF THE LEASE (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined the plaintiff-landlord was not entitled to summary judgment based on the terms of the second amended lease because the landlord could not show that the defendant-tenant was ever provided with a fully executed lease: … [A] leasehold estate cannot be conveyed without a legal delivery of the fully […]

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THE PEOPLE DID NOT DISPROVE THE JUSTIFICATION DEFENSE; THE FACT THAT THE VICTIM WAS SHOT IN THE BACK DURING A SHOOTOUT WAS NOT ENOUGH (FIRST DEPT).

The First Department, exercising its interest of justice jurisdiction, reversing defendant’s manslaughter conviction, determined the People did not disprove defendant’s justification defense. The fact that, during a shoot-out, the victim was shot in the back was not enough: “When a defense of justification is raised, the People must prove beyond a reasonable doubt that [the] […]

THE MOTION TO INTERVENE DID NOT HAVE THE PROPOSED PLEADING ATTACHED; THE MOTION SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the motion to intervene should have been denied because the proposed pleading was not attached to the motion: A motion seeking leave to intervene, whether made pursuant to CPLR 1012 or 1013, must include the proposed intervenor’s proposed pleading (see CPLR 1014 …). Here, Plotch did not submit […]

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PLAINTIFF NURSE WAS ASSAULTED BY A PATIENT IN DEFENDANT’S HOSPITAL; SHE WAS ENTITLED TO DISCOVERY OF ANY NON-PRIVILEGED INFORMATION ABOUT THE PATIENT’S AGGRESSIVE BEHAVIOR IN HIS MEDICAL RECORDS (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined plaintiff was entitled to an in camera review her assailant’s (Downing’s) medical records to discovery of any non-privileged references to his aggressive behavior. Plaintiff was a nurse assigned to work in defendant’s hospital when she was assaulted by defendant patient: Information relating to the nature of medical […]

PLAINTIFF WAS MOVING A HEAVY COMPRESSOR ON A PLANK OVER A TWO-FOOT-DEEP TRENCH WHEN THE PLANK BROKE; THE INJURY WAS COVERED BY LABOR LAW 240(1) AS AN ELEVATION-RELATED INCIDENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s injury was covered by Labor Law 240(1). Plaintiff was moving a heavy compressor on a plank over a trench when the plank broke: … [T]he injured plaintiff and his coworkers were attempting to transport a compressor, which weighed approximately 300 pounds, from a sidewalk to the street. […]

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THE AWARD OF COUNSEL FEES TO MOTHER IN THIS MODIFICATION OF CUSTODY PROCEEDING WAS AN ABUSE OF DISCRETION; FATHER WAS NOT GIVEN ADEQUATE NOTICE OF ANY FRIVOLOUS CONDUCT; THE FINANCIAL CIRCUMSTANCES OF THE PARTIES WERE NOT CONSIDERED; THE RELEVANT REGULATORY AND STATUTORY CRITERIA EXPLAINED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the court should not have awarded counsel fees to mother. Mother brought an action for modification of a custody order on the ground father had lied about the method of transportation he used to go to Alabama with the child. Apparently father told mother they were going to […]

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FATHER, AS THE NONCUSTODIAL PARENT PROVIDING MOST OF THE FINANCIAL SUPPORT FOR THE CHILDREN, WAS ENTITLED TO DECLARE THE CHILDREN DEPENDENTS FOR INCOME TAX PURPOSES (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined father, as the noncustodial parent contributing most of the financial support for the children, was entitled to declare the children dependents for income-tax purposes: Where, as here, the noncustodial parent is contributing the majority of the financial support of the parties’ children, “the court may determine that […]

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THE EXECUTIVE-ORDER COVID TOLLS APPLY TO THE SPEEDY TRIAL STATUTE, RENDERING THE INDICTMENT OF THE DEFENDANT TIMELY (SECOND DEPT).

The Second Department, reversing County Court, determined the speedy-trial statute was tolled by the COVID executive orders, rendering the prosecution of defendant timely: Where, as here, a defendant is charged with a felony, the People are required to be ready for trial within six months of the commencement of the criminal action (see CPL 30.30[1][a] […]

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FAMILY COURT SHOULD HAVE APPOINTED MOTHER GUARDIAN OF THE JUVENILE, DISPENSED WITH SERVICE ON FATHER, AND MADE FINDINGS TO ALLOW THE JUVENILE TO APPLY FOR SPECIAL JUVENILE IMMIGRATION STATUS (SJIS); ALL OF THE COMPLICATED, INTERTWINED STATUTORY LAW EXPLAINED (SECOND DEPT).

The Second Department, reversing Family Court, determined mother should have been appointed guardian of the juvenile and the court should have made findings to allow the juvenile to apply for special immigration juvenile status (SIJS). Family Court should not have required a birth certificate to prove the juvenile’s age: Family Court Act § 661(a) permits the […]

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SENDING THE 90-DAY FORECLOSURE NOTICE TO THE TWO BORROWERS IN THE SAME ENVELOPE VIOLATED RPAPL 1304 (SECOND DEPT).

The Second Department, reversing Supreme Court, determined sending the notice of foreclosure to the two borrowers in the same envelope violated RAPL 1304 which must be strictly complied with: RPAPL 1304(1) provides that, “at least ninety days before a lender, an assignee or a mortgage loan servicer commences legal action against the borrower, . . […]

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