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Entries by Bruce Freeman

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BUYER WAS ENTITLED TO SPECIFIC PERFORMANCE OF A CONTRACT FOR THE SALE OF “INCLUSIONARY AIR RIGHTS” (IAR’S); IAR’S DICTATE THE ALLOWED SQUARE FOOTAGE OF BUILDINGS ON A PARCEL OF LAND (THE ALLOWED NUMBER OF FLOORS FOR EXAMPLE) (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, in a full-fledged opinion by Justice Gonzalez, determined that a contract for the purchase of “inclusionary air rights” (IAR’s) was subject to specific performance. “Air rights” are controlled by zoning regulations. For example, if a 10,000 square-foot parcel of land is allowed 50,000 square feet of floor space, the […]

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THE “NO ACTION” PROVISION IN THE CONTRACT PRECLUDED PLAINTIFFS FROM BRINGING A JUDICIAL BREACH OF CONTRACT ACTION; THE AVAILABLE CONTRACTUAL REMEDIES WERE DEEMED EXCLUSIVE (FIRST DEPT). ​

The First Department, reversing the appellate division, in a full-fledged opinion by Justice Oing, over a two-justice dissent, determined the complaint seeking a judicial determination whether the contingent resource payment (CRP) agreement was breached when Exxon purchased InterOil Corporation was properly dismissed. Exxon successfully argued that plaintiffs’ only recourse was contractual under the terms of […]

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WHERE A JURY NOTE DOES NOT UNAMBIGUOUSLY DESCRIBE A REQUESTED EXHIBIT, THE NOTE MUST BE READ OR SHOWN TO THE PARTIES AND THE PARTIES MUST BE ALLOWED INPUT RE: THE PROPER RESPONSE; HERE THE JUDGE DID NOT FOLLOW THAT PROCEDURE AND THE CONVICTIONS WERE REVERSED (FIRST DEPT).

The First Department, reversing defendant’s convictions and ordering a new trial, determined the judge did not follow proper procedure re: notes received from the jury during deliberations: The court did not follow the procedures set forth in People v O’Rama (78 NY2d 270[1991]) with regard to several jury notes. The record does not reflect that […]

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THE PROOF FATHER NEGLECTED THE CHILD WAS PRIMARILY BASED UPON HIS INCARCERATION, WHICH WAS NOT SUFFICIENT (THIRD DEPT).

The Third Department, reversing Family Court, over a concurrence, determined the proof respondent father neglected the child was insufficient. The neglect finding appeared to be primarily based upon father’s incarceration: We note that a determination of whether respondent neglected the child was complicated by the fact that no DNA analysis was performed to establish paternity […]

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THE PROOF OF DOMESTIC VIOLENCE AT THE FORTHCOMING CUSTODY TRIAL SHOULD NOT HAVE BEEN LIMITED TO INCIDENTS OCCURRING AFTER THE HAGUE CONVENTION PROCEEDINGS IN CYPRUS (FIRST DEPT). ​

The First Department, reversing (modifying) Family Court, determined the proof of domestic violence at the upcoming custody trial should not have been limited to incidents occurring after the Hague Convention proceedings in Cyprus: … [T]hat aspect of the order that limits the proof of domestic violence that the mother may try to introduce at the […]

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IN THIS CHILD VICTIMS ACT PROCEEDING, THE CLAIM SUFFICIENTLY ALLEGED THE TIME WHEN THE ALLEGED SEXUAL ASSAULT TOOK PLACE; LEGAL CRITERIA EXPLAINED (SECOND DEPT).

The Second Department, reversing the Court of Claims, determined the claim sufficiently stated when the alleged sexual assault occurred in this Child Victims Act action: “Court of Claims Act § 11(b) requires a claim to specify (1) the nature of the claim; (2) the time when it arose; (3) the place where it arose; (4) […]

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EVEN THOUGH THE NUMBER OF POINTS WAS REDUCED BY THE CHANGE IN THE FACTUAL BASIS FOR THE RISK ASSESSMENT FROM “ARMED WITH A DANGEROUS INSTRUMENT” (RECOMMENDED BY THE BOARD) TO “INFLICTED PERSONAL INJURY,” DEFENDANT WAS ENTITLED TO 10 DAYS NOTICE OF THE CHANGE (SECOND DEPT).

The Second Department, reversing Supreme Court in this SORA risk assessment proceeding, determined defendant was not given the required 10-day notice that the People would seek points under a risk factor that differed from the recommendation submitted by the the board. Here the board recommended a 30-point assessment under risk factor 1 for “armed with […]

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FAMILY COURT PROPERLY DETERMINED NEW YORK WAS NOT THE APPROPRIATE FORUM IN THIS CUSTODY DISPUTE, BUT THE NEW YORK PROCEEDINGS SHOULD HAVE BEEN STAYED, NOT DISMISSED (SECOND DEPT).

The Second Department, reversing (modifying) Family Court, determined Family Court properly decided New York was not the appropriate forum for this custody dispute between father in New York and mother and child in Texas, but Family Court should have stayed, not dismissed, the New York proceedings: Based on the record before us, we agree with […]

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MOTHER’S PETITION ALLEGED FACTS SUFFICIENT TO WARRANT A MODIFICATION-OF-CUSTODY HEARING; LEGAL CRITERIA EXPLAINED (SECOND DEPT).

The Second Department, reversing Family Court, determined mother’s petition alleged facts sufficient to warrant a hearing on whether the custody arrangement should be modified: … [M]other’s petition contained allegations that were sufficiently specific to warrant a hearing, including the allegations that the parties’ ability to cooperate with each other with respect to the children had […]

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THE RECORD DID NOT SUPPORT THE FINDING THAT FATHER, DUE TO UNTREATED MENTAL ILLNESS, NEGLECTED ONE CHILD AND DERIVATIVELY NEGLECTED THE OTHER CHILDREN; THE CRITERIA FOR A NEGLECT FINDING IN THIS CONTEXT ARE LAID OUT IN DETAIL (SECOND DEPT).

The Second Department, reversing Family Court, determined the finding that father, due to untreated mental illness, neglected one child, Fyre, and derivatively neglected the other children was not supported by the record: … [T]he record fails to support a finding of derivative neglect as to the subject children based on the purported neglect of Fyre. […]

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