Bruce Freeman – Page 260 – New York Appellate Digest

About Bruce Freeman

This author has not written his bio yet.
But we are proud to say that Bruce Freeman contributed 11738 entries already.

Entries by Bruce Freeman

Civil Procedure, Criminal Law, Family Law, Judges

ABSENT A STIPULATION BY THE PARTIES, FAMILY COURT SHOULD NOT HAVE WITHDRAWN THE FAMILY OFFENSE PETITION (SECOND DEPT).

The Second Department, reversing Family Court, determined the family offense petition should not have been withdrawn by the judge because the parties did not stipulate to the withdrawal: Where, as here, the matter has been submitted to the court, “the court may not order an action discontinued except upon the stipulation of all parties appearing […]

March 29, 2023

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

THE ARTICLE 78 PETITION SOUGHT RELIEF NOT AVAILABLE IN SUCH A PROCEEDING (REMOVAL OF A TERRACE CONSTRUCTED ABOVE PETITIONER’S RESIDENCE); THE APPELLATE COURT CONVERTED THE PETITION TO A COMPLAINT PURSUANT TO CPLR 103 (SECOND DEPT).

The Second Department determined the Article 78 petition seeking the removal of a terrace constructed above petitioner’s property sought relief not available pursuant to Article 78 but converted the petition to a complaint pursuant to CPLR 103[c]: RPAPL 871(1) authorizes the owner of any legal estate in land to maintain an action for an injunction […]

March 29, 2023

Family Law, Judges

FAMILY COURT DID NOT ARTICULATE ITS REASONS FOR DETERMINING CHILD SUPPORT BASED ON PARENTAL INCOME IN EXCESS OF THE STATUTORY CAP; THE ORIGINAL SUPPORT LEVEL BASED ON THE STATUTORY CAP REINSTATED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined father’s objections to the level of mother’s child support obligation should not have been granted. Family Court had more than doubled the support obligations based on the couple’s income level, which was above the statutory cap. But Family Court did not sufficiently articulate the reasoning underlying the discretionary […]

March 29, 2023

Evidence, Family Law, Judges

THE JUDGE SHOULD NOT HAVE DECIDED MOTHER’S CUSTODY PETITION WITHOUT A BEST INTERESTS HEARING (SECOND DEPT).

The Second Department, reversing Supreme Court, determined a hearing was required in this custody proceeding: “Custody determinations . . . require a careful and comprehensive evaluation of the material facts and circumstances in order to permit the court to ascertain the optimal result for the child” … . Accordingly, “custody determinations should ‘[g]enerally’ be made […]

March 29, 2023

Civil Procedure, Judges, Negligence

IN AN INQUEST ON DAMAGES AFTER DEFENDANT DEFAULTED, THE JUDGE SHOULD NOT HAVE CONSIDERED LIABILITY ISSUES (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the judge should not have considered issues of liability in the inquest on damages after defendant’s default: After conducting the inquest, the court found … that the plaintiff had failed to proffer credible evidence that the accident occurred or that she had sustained an injury that was caused […]

March 29, 2023

Attorneys, Civil Procedure, Evidence, Judges

PRECLUSION OF EVIDENCE AS A DISCOVERY SANCTION WAS NOT WARRANTED; THERE WAS NO EVIDENCE OF WILLFUL OR CONTUMACIOUS CONDUCT AND THE SANCTIONED PARTY WAS NOT GIVEN AN OPPORTUNITY TO EXPLAIN THE FAILURE TO COMPLY WITH DISCOVERY ORDERS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the discover sanctions imposed by the judge on plaintiff were not warranted: … Supreme Court improvidently exercised its discretion by imposing the drastic sanction of preclusion upon the plaintiff without affording the plaintiff adequate notice and an opportunity to be heard, including on facts relevant to whether the […]

March 29, 2023

Civil Procedure, Civil Rights Law

WHERE A STATUTE, HERE CIVIL RIGHTS LAW 40-B, PRESCRIBES A MONETARY REMEDY, AN INJUNCTION IS NOT AVAILABLE (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiffs’ request for a preliminary injunction in this Civil Rights Law 40-b action should not have been granted because the remedy is statutory. Civil Rights Law 40-b prohibits an entertainment venue from denying entry to a person who has a ticket: … [I]t was improper for the motion […]

March 28, 2023

Criminal Law

THE RAPE FIRST AND CRIMINAL SEXUAL ACT FIRST CONVICTIONS WERE VACATED AS INCLUSORY CONCURRENT COUNTS OF TWO PREDATORY SEXUAL ASSAULT COUNTS (FIRST DEPT).

The First Department vacated the convictions of rape first and criminal sexual act first as inclusory concurrent counts of two of the predatory sexual assault counts. People v Heyward, 2023 NY Slip Op 01651, First Dept 3-28-23 Practice Point: Here the rape first and criminal sexual act first convictions were vacated as inclusory concurrent counts of […]

March 28, 2023

Attorneys, Contract Law, Privilege, Trademarks

DEFENDANT’S OFFER TO PROVIDE FALSE TESTIMONY IN A SEPARATE ACTION IS NOT PROTECTED BY THE LITIGATION PRIVILEGE IN THIS RELATED ACTION ALLEGING DEFENDANT’S BREACHED A CONFIDENTIALITY AND NONDISPARAGEMENT AGREEMENT (FIRST DEPT).

The First Department, reversing Supreme Court, in a full-fledged opinion by Justice Rodriguez, determined defendant’s motion to dismiss the complaint for failure to state a cause of action should not have been granted. The complaint alleged breach of a confidentiality and nondisparagement agreement (TRB Agreement) which stemmed from a trademark infringement and unfair competition action […]

March 28, 2023

Criminal Law, Evidence, Judges

THE JUDGE SHOULD NOT HAVE DETERMINED THE TRIAL WITNESS’S IDENTIFICATION OF DEFENDANT WAS CONFIRMATORY FOR THE FIRST TIME AT TRIAL; A MIDTRIAL RODRIGUEZ HEARING SHOULD HAVE BEEN HELD; MATTER REMITTED (FOURTH DEPT).

The Fourth Department, remitting the matter for a hearing to determine whether a witness’s identification of defendant was confirmatory, noted that the judge should not have found the identification confirmatory for the first time based on the witness’s trial testimony. A Rodriguez hearing should have been when the issue came up at trial: The witness […]

March 24, 2023

About Bruce Freeman

Entries by Bruce Freeman

ABSENT A STIPULATION BY THE PARTIES, FAMILY COURT SHOULD NOT HAVE WITHDRAWN THE FAMILY OFFENSE PETITION (SECOND DEPT).

THE ARTICLE 78 PETITION SOUGHT RELIEF NOT AVAILABLE IN SUCH A PROCEEDING (REMOVAL OF A TERRACE CONSTRUCTED ABOVE PETITIONER’S RESIDENCE); THE APPELLATE COURT CONVERTED THE PETITION TO A COMPLAINT PURSUANT TO CPLR 103 (SECOND DEPT).

FAMILY COURT DID NOT ARTICULATE ITS REASONS FOR DETERMINING CHILD SUPPORT BASED ON PARENTAL INCOME IN EXCESS OF THE STATUTORY CAP; THE ORIGINAL SUPPORT LEVEL BASED ON THE STATUTORY CAP REINSTATED (SECOND DEPT).

THE JUDGE SHOULD NOT HAVE DECIDED MOTHER’S CUSTODY PETITION WITHOUT A BEST INTERESTS HEARING (SECOND DEPT).

IN AN INQUEST ON DAMAGES AFTER DEFENDANT DEFAULTED, THE JUDGE SHOULD NOT HAVE CONSIDERED LIABILITY ISSUES (SECOND DEPT).

PRECLUSION OF EVIDENCE AS A DISCOVERY SANCTION WAS NOT WARRANTED; THERE WAS NO EVIDENCE OF WILLFUL OR CONTUMACIOUS CONDUCT AND THE SANCTIONED PARTY WAS NOT GIVEN AN OPPORTUNITY TO EXPLAIN THE FAILURE TO COMPLY WITH DISCOVERY ORDERS (SECOND DEPT).

WHERE A STATUTE, HERE CIVIL RIGHTS LAW 40-B, PRESCRIBES A MONETARY REMEDY, AN INJUNCTION IS NOT AVAILABLE (FIRST DEPT).

THE RAPE FIRST AND CRIMINAL SEXUAL ACT FIRST CONVICTIONS WERE VACATED AS INCLUSORY CONCURRENT COUNTS OF TWO PREDATORY SEXUAL ASSAULT COUNTS (FIRST DEPT).

DEFENDANT’S OFFER TO PROVIDE FALSE TESTIMONY IN A SEPARATE ACTION IS NOT PROTECTED BY THE LITIGATION PRIVILEGE IN THIS RELATED ACTION ALLEGING DEFENDANT’S BREACHED A CONFIDENTIALITY AND NONDISPARAGEMENT AGREEMENT (FIRST DEPT).

THE JUDGE SHOULD NOT HAVE DETERMINED THE TRIAL WITNESS’S IDENTIFICATION OF DEFENDANT WAS CONFIRMATORY FOR THE FIRST TIME AT TRIAL; A MIDTRIAL RODRIGUEZ HEARING SHOULD HAVE BEEN HELD; MATTER REMITTED (FOURTH DEPT).

Categories

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