Bruce Freeman – Page 242 – New York Appellate Digest

About Bruce Freeman

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Entries by Bruce Freeman

Attorneys, Civil Procedure, Evidence, Negligence

AN ANSWER OR A COMPLAINT VERIFIED BY AN ATTORNEY DOES NOT PROVE THE CONTENTS (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, noted that an answer verified by an attorney (as opposed to the defendant) and a complaint verified by an attorney (as opposed to the plaintiff) do not prove the contents: … [A]n answer verified by an attorney is insufficient to demonstrate that the defendant has a potentially meritorious […]

May 17, 2023

Judges

THE JUDGE SHOULD NOT HAVE, SUA SPONTE, GRANTED RELIEF NO PARTY REQUESTED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the judge should not have, sua sponte, granted relief which was not requested by any party: The Supreme Court should not have, sua sponte, directed the plaintiffs to prepare documents for a closing and to schedule a closing, or to pay to the defendant 27% of the […]

May 17, 2023

Family Law

ALTHOUGH FATHER’S GIRLFRIEND HAD ONLY SEEN THE ABUSED CHILD TWO OR THREE TIMES SHE WAS DEEMED A PERSON LEGALLY RESPONSIBLE FOR THE CHILD; THERE WAS A STRONG DISSENT (SECOND DEPT).

The Second Department, over an extensive dissent, determined father’s girlfriend, Aisha, who only seen the abused child, Erica, two or three times, was correctly deemed a person legally responsible for Erica. The decision and the dissent are too fact-specific to fairly summarize here: “Determining whether a particular person has acted as the functional equivalent of […]

May 17, 2023

Contract Law, Real Estate

A DEADLINE SET IN A TIME-IS-OF-THE-ESSENCE LETTER CAN BE WAIVED ORALLY, OR EVEN BY CONDUCT ALONE (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined there was a question of fact whether defendant orally waived the deadline for the real estate transaction set in a time-is-of-the-essence letter: … “[I]t is well settled, in New York, that an oral waiver of the time for the sale of real property will be given effect” […]

May 17, 2023

Constitutional Law, Foreclosure, Municipal Law, Real Property Tax Law

ALTHOUGH THERE IS MERIT TO THE DEFENDANTS’ ARGUMENT THEY WERE DEPRIVED OF THEIR PROPERTY WITHOUT JUST COMPENSATION IN THESE TAX FORECLOSURE PROCEEDINGS WHERE THEIR PROPERTIES WERE TRANSFERRED TO NEIGHBORHOOD RESTORE UNDER NYC’S THIRD PARTY TRANSFER PROGRAM, THE DEFENDANTS’ FAILURE TO ANSWER IN THE TAX FORECLOSURE ACTIONS AND THEIR FAILURE TO REDEEM WITHIN FOUR MONTHS PRECLUDED ANY RECOVERY (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Wooten, determined the tax foreclosures on defendants’ properties were valid and the transfer of the properties under New York City’s Third Party Transfer Program (TPT program) was proper. The court noted that, under the current procedure, property worth $2 million could be lost for nonpayment of […]

May 17, 2023

Civil Procedure, Evidence, Foreclosure, Uniform Commercial Code

THE BANK DID NOT PRESENT SUFFICIENT EVIDENCE OF STANDING TO FORECLOSE; THE EVIDENCE DID NOT DEMONSTRATE THE ALLONGE WAS FIRMLY ATTACHED TO THE NOTE; EVIDENCE FIRST OFFERED IN REPLY SHOULD NOT HAVE BEEN CONSIDERED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank did not demonstrate it had standing to foreclose because the evidence the allonge was firmly attached to the note was insufficient. The court noted Supreme Court should not have considered evidence first submitted in reply: Although the vice president of loan documentation attested in her affidavit, […]

May 17, 2023

Civil Procedure, Foreclosure, Real Property Actions and Proceedings Law (RPAPL), Trusts and Estates

THE ESTATE WAS A NECESSARY PARTY IN THE FORECLOSURE ACTION; THE COURT SHOULD DETERMINE WHETHER THE NECESSARY PARTY CAN BE SUMMONED AND, IF NOT, WHETHER THE ACTION CAN CONTINUE IN THE PARTY’S ABSENCE; THE FACT THAT THE STATUTE OF LIMITATIONS HAS RUN DOES NOT PRECLUDE SUMMONING THE NECESSARY PARTY (SECOND DEPT).

The Second Department, modifying Supreme Court, explained the proper procedure where it is alleged the complaint should be dismissed for failure to include a necessary party, here the failure to include an estate in a foreclosure action. First the court should determine whether the party can be summoned, noting that the expiration of the statute […]

May 17, 2023

Battery, Employment Law, Workers' Compensation

THE PERSON WHO ASSAULTED PLAINTIFF WAS THE OWNER OF THE LAW FIRM PLAINTIFF WORKED FOR; PLAINTIFF COULD RECOVER WORKERS’ COMPENSATION BENEFITS FROM THE LAW FIRM AND DAMAGES FOR ASSAULT AND BATTERY FROM THE OWNER, WHO WAS A COEMPLOYEE (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined plaintiff could recover for assault and battery against a coemployee (Levoritz) even though plaintiff had been awarded Workers’ Compensation benefits from his employer for the same assault and battery. Plaintiff was employed by defendant law firm at the time of the alleged assault and battery and the […]

May 17, 2023

Nuisance, Trespass

A CON EDISION TRANSFORMER MINI PAD WHICH ENCROACHED SIX INCHES ONTO PLAINTIFFS’ PROPERTY WAS A TRESPASS ENTITLING PLAINTIFFS TO NOMINAL DAMAGES; THE STICKER ON THE TRANSFORMER WARNING TO STAY THREE FEET AWAY FROM THE TRANSFORMER WAS A NUISANCE, AN INTANGIBLE INTRUSION, NOT A TRESPASS (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the installation of a transformer mini pad by Con Edison which encroached six inches onto plaintiffs’ property was a trespass and defendant was liable for nominal damages of $1. The sticker on the mini pad warning people to stay three feet away was not a trespass. Rather […]

May 17, 2023

Contract Law, Insurance Law, Limited Liability Company Law

THE SOLE MEMBER OF AN LLC WHICH OWNS THE PROPERTY HAS AN INSURABLE INTEREST IN THE PROPERTY; AN INSURER WHICH ACCEPTS PAYMENT ON A POLICY AFTER LEARNING OF THE INSURED’S ALLEGED MISREPRESENTATIONS WAIVES THE RIGHT TO RESCIND THE POLICY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined: (1) plaintiff, as the sole member of an LLC which owned the property, had an insurable interest in the property; and (2) defendant’s accepting payment on the policy after defendant was aware of plaintiff’s alleged misrepresentations waived defendant’s right to rescind the policy: … [A]s the sole owner […]

May 17, 2023

About Bruce Freeman

Entries by Bruce Freeman

AN ANSWER OR A COMPLAINT VERIFIED BY AN ATTORNEY DOES NOT PROVE THE CONTENTS (SECOND DEPT).

THE JUDGE SHOULD NOT HAVE, SUA SPONTE, GRANTED RELIEF NO PARTY REQUESTED (SECOND DEPT).

ALTHOUGH FATHER’S GIRLFRIEND HAD ONLY SEEN THE ABUSED CHILD TWO OR THREE TIMES SHE WAS DEEMED A PERSON LEGALLY RESPONSIBLE FOR THE CHILD; THERE WAS A STRONG DISSENT (SECOND DEPT).

A DEADLINE SET IN A TIME-IS-OF-THE-ESSENCE LETTER CAN BE WAIVED ORALLY, OR EVEN BY CONDUCT ALONE (SECOND DEPT).

THE BANK DID NOT PRESENT SUFFICIENT EVIDENCE OF STANDING TO FORECLOSE; THE EVIDENCE DID NOT DEMONSTRATE THE ALLONGE WAS FIRMLY ATTACHED TO THE NOTE; EVIDENCE FIRST OFFERED IN REPLY SHOULD NOT HAVE BEEN CONSIDERED (SECOND DEPT).

THE PERSON WHO ASSAULTED PLAINTIFF WAS THE OWNER OF THE LAW FIRM PLAINTIFF WORKED FOR; PLAINTIFF COULD RECOVER WORKERS’ COMPENSATION BENEFITS FROM THE LAW FIRM AND DAMAGES FOR ASSAULT AND BATTERY FROM THE OWNER, WHO WAS A COEMPLOYEE (SECOND DEPT).

THE SOLE MEMBER OF AN LLC WHICH OWNS THE PROPERTY HAS AN INSURABLE INTEREST IN THE PROPERTY; AN INSURER WHICH ACCEPTS PAYMENT ON A POLICY AFTER LEARNING OF THE INSURED’S ALLEGED MISREPRESENTATIONS WAIVES THE RIGHT TO RESCIND THE POLICY (SECOND DEPT).

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