You are here: / Bruce Freeman

Entries by Bruce Freeman

, , ,

THE COMPLAINT STATED A CAUSE OF ACTION FOR UNPAID OVERTIME WITHOUT SPECIFYING PARTICULAR DATES OR WEEKS; AFFIDAVITS ARE NOT DOCUMENTARY EVIDENCE WHICH WILL SUPPORT A “DOCUMENTARY EVIDENCE” MOTION TO DISMISS (FIRST DEPT).

The First Department, reversing Supreme Court, determined the complaint stated a cause of action for unpaid overtime wages pursuant to the Labor Law and the proof submitted by defendant did not support a motion to dismiss based on documentary evidence: Plaintiffs’ complaint sufficiently states a claim for unpaid overtime wages in violation of Labor Law […]

,

IN A TAX FORECLOSURE PROCEEDING, EVIDENCE THE LETTERS PROVIDING NOTICE OF THE FORECLOSURE WERE NOT RETURNED TO THE TAXING AUTHORITY DOES NOT PRECLUDE RAISING A QUESTION OF FACT WITH PROOF NOTICE WAS NOT RECEIVED (CT APP). ​

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Cannataro, determined the controlling statute, Real Property Tax Law (RPTL) 1125(1)(b), does not preclude plaintiff in a tax foreclosure proceeding from presenting evidence the statutory notice requirements were not complied with. The statute states that notice of the foreclosure “shall be […]

,

EVEN WHERE A SENTENCE HAS BEEN AGREED TO BY THE DEFENDANT AS PART OF A PLEA BARGAIN, AN INTERMEDIATE APPELLATE COURT IS OBLIGATED TO CONSIDER WHETHER THE SENTENCE IS UNDULY HARSH OR SEVERE, SEPARATE AND APART FROM WHETHER THE SENTENCE IS LEGAL (CT APP).

The Court of Appeals, in two concurring opinions, determined the matter should be sent back to the Appellate Term for consideration of defendant’s argument his plea-bargained sentence (a $500 fine) was unduly harsh or severe. An appellate court’s power to reduce an unduly harsh or severe sentence can be applied, even when the sentence was […]

,

THE THIRD DEPARTMENT HAS BEEN APPLYING THE WRONG STANDARD TO THE REDUCTION OF A SENTENCE IN THE INTEREST OF JUSTICE FOR DECADES; HOWEVER, BECAUSE THE THIRD DEPARTMENT HAS RECENTLY STOPPED APPLYING THE WRONG STANDARD, THIS APPEAL IS MOOT (CT APP),

The Court of Appeals determined the sentencing issue raised by the defendant (Baldwin) was moot. Judge Wilson, in a concurring opinion, explained that the standard applied by the Third Department for reduction of a sentence in the interest of justice is incorrect: The question presented on this appeal is whether, for the past several decades, […]

, , ,

INTERSTATE SOVEREIGN IMMUNITY IS AN ISSUE WHICH MUST BE RAISED BEFORE THE TRIAL COURT TO BE PRESERVED FOR APPEAL TO THE COURT OF APPEALS; HERE A NEW JERSEY TRANSIT BUS COLLIDED WITH A CAR DRIVEN BY A NEW YORK RESIDENT IN THE LINCOLN TUNNEL AND THE TRIAL WAS HELD IN NEW YORK; ALTHOUGH THE INTERSTATE SOVEREIGN IMMUNITY DEFENSE WAS VALIDATED BY THE US SUPREME COURT IN 2019, THE ISSUE WAS NOT RAISED BEFORE THE TRIAL COURT (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge Singas, over a two-judge dissenting opinion, determined the sovereign immunity defense raised for the first time on appeal by New Jersey in this traffic accident case was not preserved for appeal to the Court of Appeals. The accident happened in the Lincoln Tunnel and involved […]

,

TWO DISSENTERS ARGUED THE UNPRESERVED ISSUE, WHICH INVOLVED SETTLED LAW, SHOULD NOT HAVE BEEN CONSIDERED ON APPEAL (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, considered an unpreserved issue on appeal (the date from which prejudgment interest begins to run). The dissenting justices argued the unpreserved issue involved settled law and there was, therefore, no reason to consider it: The majority assumes that the issue is unpreserved but reaches the merits of claimant’s […]

,

PLAINTIFF’S ACTION RELIED ON EXTRINSIC EVIDENCE AND WAS NOT AN ACTION FOR THE PAYMENT OF MONEY ONLY WHICH CAN BE BROUGHT BY SUMMONS IN LIEU OF A COMPLAINT PURSUANT TO CPLR 3213 (FOURTH DEPT),

The Fourth Department, reversing Supreme Court, determined plaintiff’s cause of action was not for the payment of money only (CPLR 3213) for which a summons in lieu of  a complaint was an appropriate vehicle: As proof of the agreement to reduce defendant’s liability under the guaranty and the amount of that reduction, plaintiff relies on […]

,

PLAINTIFFS PROVED THE “ENSUING LOSS” EXCEPTION TO THE “FAULTY WORKMANSHIP” EXCLUSION IN THE HOME INSURANCE POLICY APPLIED; PLUMBING WORK WAS FAULTY, RESULTING IN FLOODING THROUGHOUT THE HOUSE; THE WATER DAMAGE WAS COVERED UNDER THE “ENSUING LOSS” EXCEPTION TO THE “FAULTY WORKMANSHIP” EXCLUSION (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the “ensuing loss’ exception to the “faulty workmanship” exclusion applied. The plumbers apparently used the wrong adhesion material for a water-pipe connection. The connection failed and the house was flooded. The “ensuing loss” exception to the “faulty workmanship” exclusion “provide[s] coverage when, as a result of an excluded […]

DEFENDANT WAS CONVICTED OF GRAND LARCENY BASED UPON OVERCHARGING HER EMPLOYER; THE RESTITUTION SHOULD NOT HAVE INCLUDED THE LABOR COSTS INCURRED BY THE EMPLOYER FOR INVESTIGATING THE CRIME OR THE TRAVEL COSTS FOR WITNESSES TO TESTIFY AT TRIAL; THE FOURTH DEPARTMENT REFUSED TO FOLLOW A THIRD DEPARTMENT DECISION RE: TRAVEL EXPENSES AND LOST WORK ASSOCIATED WITH TESTIFYING AT TRIAL (FOURTH DEPT).

The Fourth Department determined restitution in this grand larceny case should not include the victim’s (HomeCare”s) labor costs associated with investigating the defendant’s theft or the travel expense of witnesses who testified at trial: Defendant was charged with grand larceny … after HomeCare conducted an audit of her time sheets and mileage vouchers and determined […]

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