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Entries by Bruce Freeman

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PLAINTIFF’S FAILURE TO FILE AN APPLICATION FOR AN ORDER OF REFERENCE IN THIS FORECLOSURE ACTION WAS NOT A GROUND FOR DISMISSAL OF THE COMPLAINT SUA SPONTE (SECOND DEPT). ​

The Second Department, reversing Supreme Court in this foreclosure action, determined the plaintiff’s failure to comply with a directive to apply for an order of reference was not an appropriate ground for dismissing the complaint sua sponte: “A court’s power to dismiss a complaint, sua sponte, is to be used sparingly and only when extraordinary […]

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A SEX OFFENDER MAY PETITION ANNUALLY FOR A MODIFICATION OF THE RISK LEVEL CLASSIFICATION; SUCH A PETITION IS NOT PRECLUDED BY PRIOR PETITIONS WITHIN A YEAR SEEKING OTHER RELIEF UNDER THE CORRECTION LAW (SECOND DEPT), ​

​The Second Department, reversing Supreme Court, noted that a sex offender can petition annually for a modification of the risk level classification, notwithstanding prior petitions within a year seeking other relief: … [T]he petition … sought a downward modification of the defendant’s risk level classification. Pursuant to Correction Law § 168-o(2), any sex offender required to register […]

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THE PROVISION OF MENTAL HYGIENE LAW SECTION 10 THAT ALLOWS A COURT TO DETERMINE WHETHER THERE IS PROBABLE CAUSE TO BELIEVE PETITIONER, WHO HAD BEEN RELEASED TO A STRICT AND INTENSIVE SUPERVISION AND TREATEMENT (SIST) REGIMEN, IS A DANGEROUS SEX OFFENDER REQUIRING CONFINEMENT IS NOT UNCONSTITUTIONAL (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court in this habeas corpus proceeding, determined the “provision of Mental Hygiene Law § 10.11(d)(4) that directs the court to determine whether there is probable cause to believe that a respondent in a proceeding pursuant to Mental Hygiene Law article 10 is a dangerous sex offender requiring confinement based […]

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THE TOWN PLANNING BOARD COMPLIED WITH THE “HARD LOOK” REQUIREMENTS OF SEQRA AND PROPERLY GRANTED A SPECIAL USE PERMIT, CRITERIA EXPLAINED IN SOME DETAIL (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the town planning board complied with the State Environmental Quality Review Act (SEQRA) and properly considered the criteria for a special use permit when it approved a project: … [T]he Planning Board identified groundwater resources, noise, and scenic resources as relevant areas of environmental concern, took a hard […]

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PETITIONER DID NOT DEMONSTRATE THE COUNTY HAD TIMELY KNOWLEDGE OF THE FACTS UNDERLYING THE FALSE IMPRISONMENT AND MALICIOUS PROSECUTION CAUSES OF ACTION; THEREFORE PETITIONER SHOULD NOT HAVE BEEN GRANTED LEAVE TO FILE A LATE NOTICE OF CLAIM (SECOND DEPT).

The Second Department, reversing Supreme Court, determined petitioner should not have been granted leave to serve a late notice of claim in this false imprisonment/malicious prosecution action because petitioner did not demonstrate the municipality had timely notice of the potential lawsuit: … [T]he petitioner failed to establish that the respondents acquired actual knowledge of the […]

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THE INSURER DID NOT EXPLAIN ITS FAILURE TO TIMELY REQUEST THAT THE INSURED UNDERGO A PHYSICAL EXAM AND AN EXAMINATION UNDER OATH; THE STAY OF ARBITRATION IN THIS UNINSURED MOTORIST BENEFITS DISPUTE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the insurer, GEICO, should not have been granted a stay of arbitration in this uninsured-motorist-benefits dispute with its insured, Eser. GEICO did not explain its failure to timely request a physical exam and an examination under oath (EUO): GEICO had ample time after being notified of Eser’s claim […]

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FATHER’S PARENTAL ACCESS SHOULD NOT HAVE BEEN CONDITIONED UPON HIS PARTICIPATION IN COUNSELING OR TREATMENT (SECOND DEPT).

The Second Department, reversing (modifying) Family Court, determined father’s access to the child should not have been conditioned upon his participation in counseling or treatment: “A court deciding a custody proceeding may direct a party to submit to counseling or treatment as a component of a [parental access] or custody order” … . However, a […]

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WHEN A JUVENILE PLEADS GUILTY TO AN OFFENSE FOR WHICH HE CANNOT BE HELD CRIMINALLY RESPONSIBLE, THE CONVICTION MUST BE VACATED AND DISMISSED (FIRST DEPT).

The First Department, vacating defendant’s conviction by guilty plea, determined that because defendant, a juvenile, cannot be held criminally responsible for the crime to which he pled guilty, the conviction must be vacated rather than sent to Family Court: The People are correct that where a juvenile is charged with a crime for which he […]

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PLAINTIFFS COULD NOT DEMONSTRATE RELIANCE UPON THE INFLATED RENTS DESCRIBED IN THE FILED REGISTRATION STATEMENTS; THEREFORE THE COMPLAINT ALLEGING A FRAUDULENT SCHEME TO DEREGULATE APARTMENTS SHOULD HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversing Supreme Court, in a full-fledged opinion by Justice Friedman, determined defendant landlord’s motion to dismiss the complaint alleging a fraudulent scheme to deregulate apartments should have been granted. The court found that the plaintiffs did not demonstrate the “reliance” element of fraud: The primary question on this appeal is whether plaintiffs, […]

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