You are here: / Bruce Freeman

Entries by Bruce Freeman

, , ,

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 […]

, , ,

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, […]

, , ,

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 […]

, ,

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 […]

,

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 […]

, ,

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 […]

,

DEFENDANT WAS ENTITLED TO A DOWNWARD DEPARTURE TO A LEVEL ONE BECAUSE HE HAD BEEN AT LIBERTY FOR 17 YEARS WITHOUT REOFFENDING (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant was entitled a downward departure to level one because he had been at liberty for 17 years without reoffending: In light of the purpose of SORA, which is to assess the risk that the offender poses while at liberty, lengthy periods during which the defendant has been at […]

,

THE WITNESS’S TRIAL TESTIMONY THAT HE DID NOT SEE THE PERPETRATOR’S FACE AND DID NOT SEE THE DEFENDANT FIRE A GUN MERELY FAILED TO CORROBORATE OR BOLSTER THE PEOPLE’S CASE, IT DID NOT CONTRADICT OR DISPROVE ANY EVIDENCE; THEREFORE THE PROSECUTOR SHOULD NOT HAVE BEEN ALLOWED TO IMPEACH THE WITNESS (SECOND DEPT).

The Second Department, reversing defendant’s conviction and ordering a new trial, determined the prosecutor should not have been allowed to impeach her own witness because the witness’s testimony merely failed to corroborate or bolster the People’s case, it did not contradict or disprove any evidence. The witness testified he did not see the perpetrator’s face […]

A SENTENCE CANNOT BE ALTERED AFTER THE DEFENDANT HAS BEGUN SERVING IT; HERE THE AMENDED UNIFORM SENTENCE AND COMMITMENT FORM DID NOT MERELY CORRECT AN INADVERTENT MISTAKE, IT ALTERED THE SENTENCE AND WAS THEREFORE INVALID (SECOND DEPT). ​

The Second Department, reversing County Court, determined the amended uniform sentence and commitment form which was filed after defendant had begun serving his sentence was invalid. Defendant was originally sentenced for three felonies, two of which were to run consecutively with the third. By operation of law, the two which were to run consecutively with […]

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy