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Entries by Bruce Freeman

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A PRESENTENCE REPORT MUST BE CREATED FOR EACH OFFENSE; HERE THE JUDGE USED A PRESENTENCE REPORT PREPARED FOR A DIFFERENT UNRELATED OFFENSE; THE SENTENCE WAS ILLEGALLY IMPOSED (SECOND DEPT).

The Second Department, vacating defendant’s sentence, determined the sentencing court should not have used a presentence report created for an earlier, unrelated offense. A unique presentence report for each offense is mandatory: CPL 390.20 provides that “[i]n any case where a person is convicted of a felony, the court must order a pre-sentence investigation of […]

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THE BANK IN THIS FORECLOSURE ACTION DID NOT SUBMIT SUFFICIENT PROOF OF STANDING OR COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 1304 (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank in this foreclosure action did not demonstrate standing or compliance with the notice requirements of RPAPL 1304: “[A] plaintiff may demonstrate its standing in a foreclosure action through proof that it was in possession of the subject note endorsed in blank, or the subject note and […]

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THE ACTION BY PLAINTIFF SELLER TO RECOVER ON A SECURITY INTEREST IN COLLATERAL FOR A LOAN TAKEN OUT BY THE BUYER AS CONSIDERATION FOR THE PURCHASE BARRED BY THE STANDSTILL AGREEMENT WHICH ASSIGNED PRIORITY TO TWO OTHER SECURITY INTERESTS (FIRST DEPT).

The First Department, reversing Supreme Court, in a full-fledged opinion by Justice Manzanet-Daniels, determined the language of a so-called standstill provision barred the action by plaintiff Intrepid seeking to recover a security interest in collateral for the $28.7 million loan taken out by the buyer, Selling Source, as consideration for the purchase. Plaintiff was a […]

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DEFENDANT MANUFACTURED VALVES CONTAINING ASBESTOS; ALTHOUGH DEFENDANT HAD A SMALL OFFICE IN NYC THE VALVES WERE MANUFACTURED AND SOLD IN CONNECTICUT, WHERE PLAINTIFF LIVED AND WORKED; THE RELATIONSHIP BETWEEN NEW YORK AND PLAINTIFF’S CLAIMS WAS NOT SUFFICIENT FOR NEW YORK JURISDICTION (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined New York did not have jurisdiction over plaintiff’s asbestos exposure action. Although the defendant manufacturer of valves containing asbestos had a small office in New York, defendant demonstrated that all the activity which related to the manufacture, sale and use of the valves took place in Connecticut. Plaintiff […]

PETITIONER POLICE OFFICER FELL TWICE AT NIGHT WHILE INVESTIGATING SUSPICIOUS ACTIVITY; HE FELL IN A THREE-FOOT DEEP HOLE WHEN CHECKING OUT A HOUSE AND HE FELL DOWN SOME STAIRS CHECKING OUT A PARKING LOT; NEITHER FALL WAS A COMPENSABLE “ACCIDENT” (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Garry, determined the two falls by petitioner police officer were not compensable “accidents” within the meaning of the Retirement and Social Security Law and petitioner was not entitled to accidental disability retirement benefits. The opinion discusses in some depth the difficulties of determining what is and […]

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EVEN THOUGH THE DEFENDANT CORPORATION DID NOT HAVE AN OFFICE IN NEW YORK COUNTY AND THE TRAFFIC ACCIDENT OCCURRED IN NASSAU COUNTY WHERE THE CORPORATION DID HAVE AN OFFICE, VENUE WAS APPROPRIATELY PLACED IN NEW YORK COUNTY BASED ON DEFENDANT’S CERTIFICATE OF INCORPORATION (FIRST DEPT).

The First Department, reversing Supreme Court, determined the defendants’ motion to change venue in this traffic accident case should not have been granted. Even though the accident didn’t occur in New York County and defendant corporation did not have an office in New York County, the certificate of incorporation designated New York County as the […]

A HEAVY DOOR FELL ON PLAINTIFF’S HAND AS HE AND A CO-WORKER ATTEMPTED TO LIFT THE DOOR ONTO A TRUCK; NO LIFTING DEVICES WERE AVAILABLE; PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s injury to his hand when a heavy door fell as plaintiff attempted to lift the door onto a truck warranted summary judgment on the Labor Law 240(1) cause of action. There was evidence no hoists or other lifting devices were available: Plaintiff testified that there were no […]

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THE PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN THIS SCHOOL PLAYGROUND ACCIDENT CASE SHOULD NOT HAVE BEEN GRANTED; PETITIONER DID NOT DEMONSTRATE THE SCHOOL HAD TIMELY ACTUAL KNOWLEDGE OF THE POTENTIAL NEGLIGENT-SUPERVISION CLAIM AND PETITIONER DID NOT OFFER A REASONABLE EXCUSE FOR FAILURE TO TIMELY FILE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the petition for leave to file a late notice of claim against the school board should not have been granted. Petitioner alleged her child was not properly supervised at recess. The child apparently ran into a piece of equipment when being chased by classmates. There was an accident […]

THERE WAS A QUESTION OF FACT WHETHER REPLACEMENT OF DAMAGED CEILING TILES WAS REPAIR, COVERED BY LABOR LAW 240(1) AND 241(6), OR ROUTINE MAINTENANCE, WHICH IS NOT COVERED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined there was a question of fact whether plaintiff, who was replacing damaged ceiling tiles when he fell, was doing repair work covered by Labor Law 240(1) and 241(6), or routine cleaning, which is not covered: “In determining whether a particular activity constitutes ‘repairing,’ courts are careful to distinguish […]

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TOWNHOUSES PURCHASED BY A NOT-FOR-PROFIT SCHOOL TO HOUSE FACULTY ARE TAX EXEMPT (SECOND DEPT),

The Second Department, reversing the city board of assessment review (BAR) determined that townhouses purchased by the Rye County Day School (RCDS), a not-for-profit school, to house faculty were tax exempt: RPTL 420-a(1)(a) provides that “[r]eal property owned by a corporation or association organized or conducted exclusively for religious, charitable, hospital, educational, or moral or […]

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