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Entries by Bruce Freeman

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IN THIS CHILD VICTIMS ACT CASE, THE ALLEGATION THE ABUSE TOOK PLACE IN 1982 – 1983 WAS SPECIFIC ENOUGH TO MEET THE PLEADING REQUIREMENTS OF THE COURT OF CLAIMS ACT (SECOND DEPT).

The Second Department, reversing the Court of Claims in this Child Victims Act proceeding, determined the claim sufficiently described when the sexual abuse occurred. The claimant alleged she was abused by a state employee in 1982 and 1983 when she was 17. The Court of Claims had dismissed the claim finding that the allegations when […]

IF PLAINTIFF DOES NOT REJECT AN UNTIMELY ANSWER SUBMITTED WITHOUT LEAVE OF COURT OR STIPULATION, OBJECTION TO THE ANSWER AS UNTIMELY IS WAIVED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the amended answer should not have been struck because it was untimely. The plaintiff did not reject the amended answer: Although Saldarriaga [defendant] filed her amended answer approximately 20 months after filing her original answer, well beyond the period within which an amended pleading could have been […]

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THE TENANT MADE GOOD FAITH EFFORTS TO CURE THE DEFAULTS CITED BY THE LANDLORD AND WAS ENTITLED TO A YELLOWSTONE INJUNCTION TOLLING TENANT’S TIME TO CURE (FIRST DEPT). ​

The First Department, in a full-fledged opinion by Justice Gonzalez, determined the tenant liquor-store had made good faith efforts to cure the defaults cited by the landlord and was entitled to a Yellowstone injunction tolling the tenant’s time to cure the defaults. The opinion lays out the fact in a level of detail which cannot […]

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THE REVIVED STATUTE OF LIMITATIONS FOR LAWSUITS ALLEGING SEXUAL ABUSE PURSUANT TO THE CHILD VICTIMS ACT (CVA) DOES NOT VIOLATE DUE PROCESS (FOURTH DEPT).

The Fourth Department, in a full-fledged opinion by Justice Bannister, determined the revived statute of limitations for law suits based upon sexual abuse under the Child Victims Act (CVA) did not violate due process: … [I]t is well settled that “a claim-revival statute will satisfy the Due Process Clause of the [New York] State Constitution if […]

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THE JUDGE’S FAILURE TO INFORM DEFENDANT OF POSTRELEASE SUPERVISION RENDERED DEFENDANT’S ADMISSION TO A PROBATION VIOLATION INVALID; THE ISSUE WAS CONSIDERED ON APPEAL DESPITE THE ABSENCE OF A MOTION TO WITHDRAW THE ADMISSION (FOURTH DEPT).

The Fourth Department, reversing County Court, determined the judge’s failure to inform defendant of postrelease supervision rendered the admission invalid. The issue may be raised on appeal despite the absence of a motion to withdraw the plea: Defendant contends that his admission was not knowing, voluntary and intelligent because County Court failed to inform him […]

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BASED ON THE PEOPLE’S THEORY, THE JURY SHOULD NOT HAVE BEEN INSTRUCTED POSSESSION OF A WEAPON IS PRESUMPTIVE EVIDENCE OF AN INTENT TO USE IT UNLAWFULLY AGAINST ANOTHER; DEFENDANT’S REQUEST TO CALL A WITNESS SHOULD NOT HAVE BEEN DENIED; DEFENDANT’S REQUEST FOR $1000 TO HIRE A PSYCHIATRIC EXPERT SHOULD NOT HAVE BEEN DENIED; NEW TRIAL ORDERED (FOURTH DEPT). ​

The Fourth Department, reversing defendant’s conviction, determined the judge (1) should not have instructed the jury that possession of a weapon is presumptive evidence of an intent to use it unlawfully against another (2) should not have prevented defendant from calling as a witness a nurse practitioner who treated him at a psychiatric facility and […]

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THE LACK-OF-STANDING DEFENSE WAS NOT RAISED IN THE ANSWER OR THE PREANSWER MOTION TO DISMISS; IT IS NOT A JURISDICTIONAL DEFECT; THEREFORE THE JUDGE SHOULD NOT HAVE, SUA SPONTE, DISMISSED THE ACTION ON THAT GROUND (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the judge should not have, sua sponte, dismissed petitioners’ declaratory judgment action against the town for lack of standing. The petitioners sought a ruling that the town had failed to enforce a zoning code provision which prohibited respondent-defendant from operating a commercial business out of his residence. Although the […]

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THE TOWN DID NOT OFFER PROOF THE ROAD LEADING TO PLAINTIFF’S HOME, WHICH WAS WIDENED BY THE TOWN, HAD BEEN USED BY THE PUBLIC AND MAINTAINED BY THE TOWN FOR 10 YEARS; THERFORE THE TOWN DID NOT PROVE THE ROAD WAS A PUBLIC HIGHWAY; THEREFORE PLAINTIFF’S EMINENT DOMAIN UNLAWFUL TAKING ACTION SHOULD NOT HAVE BEEN DISMISSED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant municipality’s motion for summary judgment in this eminent domain “unlawful taking” action should not have been granted. Apparently the municipality did some work which widened the road leading to plaintiff’s home. Whether the work constituted an “unlawful taking” of plaintiff’s property turned on whether the road could […]

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ALTHOUGH FAMILY COURT CAN DIRECT MOTHER TO ENGAGE IN COUNSELING, SUBMIT TO DRUG TESTS AND TAKE MEDICATION, FAMILY COURT CAN NOT MAKE THE DIRECTIVES A PREREQUISITE FOR VISITATION (FOURTH DEPT).

The Fourth Department determined Family Court did not have the authority to make mother’s compliance with drug-test, medication and counseling directives a prerequisite for visitation: … [T]he court erred in requiring the mother to participate in counseling, take her medications as prescribed, and provide proof of a negative hair follicle test prior to having therapeutic […]

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MATTER REMITTED FOR CONSIDERATION OF EXPERT EVIDENCE ABOUT WHICH ECUADORIAN STATUTE IS MOST CLOSELY ANALOGOUS TO NEW YORK’S FRAUDULENT-CONVEYANCE CRITERIA FOR PURPOSES OF NEW YORK’S BORROWING STATUTE; HERE THE ACTION ACCRUED IN ECUADOR; THE SHORTER OF THE APPLICABLE ECUADORIAN AND NEW YORK STATUTES OF LIMITATIONS WILL APPLY (FIRST DEPT).

The Frist Department, reversing Supreme Court and remitting the matter for consideration of the expert evidence, determined Supreme Court may have applied the wrong Ecuadorian statute in the analysis of the statute of limitations under the borrowing statute: Under CPLR 202, New York’s “borrowing statute,” where a nonresident plaintiff sues on causes of action that […]

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