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Entries by Bruce Freeman

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THE AFFIDAVIT RELIED UPON BY PLAINTIFF IN THIS FORECLOSURE ACTION TO PROVE DEFENDANT’S DEFAULT DID NOT IDENTIFY OR ATTACH THE RELEVANT BUSINESS RECORDS AND THEREFORE THE AFFIDAVIT HAD NO PROBATIVE VALUE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank’s motion for summary judgment in this foreclosure action should not have been granted. The affidavit attesting to defendant’s default did not identify or attach the business records relied upon: … [A] plaintiff can establish a default by submission of an affidavit from a person having personal […]

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ALTHOUGH DEFENDANTS’ MOTION TO SET ASIDE THE VERDICT AS A MATTER OF LAW IN THIS TRAFFIC ACCIDENT CASE WAS PROPERLY DENIED, THE MOTION TO SET ASIDE THE VERDICT AS AGAINST THE WEIGHT OF THE EVIDENCE SHOULD HAVE BEEN GRANTED; NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing Supreme Court and ordering a new trial, determined defendants’ motion to set aside the verdict in this traffic accident case as against the weight of the evidence should have been granted. The evidence, including video evidence, demonstrated defendant’s bus had a green left-turn arrow when the bus collided with plaintiff’s oncoming […]

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PLAINTIFF’S EXPERT’S AFFIDAVIT IN THIS MEDICAL MALPRACTICE ACTION WAS NOT CONCLUSORY AND THE ACTION SHOULD NOT HAVE BEEN DISMISSED ON THAT GROUND; A HOSPITAL WILL NOT BE VICARIOUSLY LIABLE FOR SURGERY COMPETENTLY PERFORMED BY HOSPITAL STAFF AT THE DIRECTION OF THE PRIVATE PHYSICIANS WHO DID THE PRIMARY SURGERY (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the medical malpractice action against the defendant surgeons should not have been dismissed on the ground plaintiff’s expert’s affidavit was conclusory. The affidavit raised questions of fact about whether defendant surgeon deviated from the requisite standard of care. The court noted that the plaintiff’s expert did not […]

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DEFENDANT DID NOT MEET THE CRITERIA FOR VACATION OF A DEFAULT JUDGMENT UNDER EITHER CPLR 5015 OR 317; CRITERIA EXPLAINED (FIRST DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion to vacate the default judgment did not meet the criteria of either CPLR 5015(a)(1) or CPLR 317: “A defendant seeking to vacate a judgment pursuant to CPLR 5015(a)(1) must demonstrate a reasonable excuse for the default and a potentially meritorious defense to the action” … . […]

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PLAINTIFF, DECEDENT’S SON, SIGNED THE NURSING HOME ADMISSION AGREEMENT WHEN HIS FATHER, WHO HAD DEMENTIA, WAS ADMITTED; THE NURSING HOME DID NOT DEMONSTRATE PLAINTIFF, BY SIGNING THE ADMISSION AGREEMENT, HAD THE AUTHORITY TO BIND DECEDENT TO ARBITRATION OF DECEDENT’S NEGLIGENCE/PERSONAL INJURY ACTION AGAINST THE NURSING HOME (SECOND DEPT). ​

he Second Department, reversing Supreme Court, determined defendant nursing home did not demonstrate plaintiff had the authority to bind the decedent to arbitration concerning the decedent’s negligence/personal injury action against the nursing home. Plaintiff is the decedent’s son who signed the admission agreement when his father, who suffered from dementia, was admitted. The nursing home […]

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THE AMENDMENT TO THE FAMILY COURT ACT WHICH PRECLUDES A FINDING OF NEGLECT BASED SOLELY ON MARIJUANA USE SHOULD BE APPLIED RETROACTIVELY; HOWEVER HERE THERE WAS SUFFICIENT EVIDENCE OF MOTHER’S NEGLECT OF THE CHILD BASED UPON HER “ABUSE” (AS OPPOSED TO “USE”) OF MARIJUANA (SECOND DEPT). ​

​The Second Department, in a full-fledged opinion by Justice Zayas, determined (1) the amendment to the Family Court act precluding a finding of neglect based solely on marijuana use should be applied retroactively, and (2) the evidence mother neglected the child based upon abuse of marijuana was sufficient: The 2021 amendment should not be interpreted […]

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THE EVIDENCE FATHER NEGLECTED THREE OF THE CHILDREN BY THROWING AN OBJECT AT MOTHER AND YELLING AT MOTHER WAS INSUFFICIENT (SECOND DEPT).

The Second Department, reversing Family Court, determined the evidence father neglected three of the children by throwing an object at mother and yelling at mother was insufficient: Family Court providently exercised its discretion in determining that the out-of-court statements of Tawdrea G., Terel R., and Micah M. G. to an ACS caseworker that the father […]

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THE ARBITRATOR’S RULING IN THIS STATUTORY, COMPULSORY ARBITRATION WAS ARBITRARY AND CAPRICIOUS, CRITERIA EXPLAINED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the arbitrator’s ruling in this no=fault insurance case was arbitrary and capricious, noting that judicial review of statutory, compulsory arbitration is more stringent than review of a voluntary agreement to arbitrate. Plaintiff GEICO paid the injured driver’s no-fault benefits and sought reimbursement from the insurer of the loaner […]

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THERE CAN BE NO REPUDIATION WHERE THERE HAS BEEN A BREACH OF CONTRACT, TWO JUSTICE DISSENT (FIRST DEPT).

The First Department, over a two-justice dissent, determined plaintiff in this landlord-tenant dispute could not seek separate redress on a theory of repudiation for the breach of contract cause of action. The decision is fact-specific and cannot be fairly summarized here: … [B]ecause a party cannot repudiate a contract it has already breached, if the […]

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THE COMPLAINT STATED A CAUSE OF ACTION FOR BREACH OF CONTRACT ALLEGING BILLING FOR SERVICES RENDERED BY ATTORNEYS NOT ADMITTED IN NEW YORK (FIRST DEPT).

The First Department, reversing Supreme Court, determined the complaint stated a cause of action against defendant attorneys (BSF) alleging BSF billed for expenses associated with attorneys not admitted in New York: The complaint stated a limited cause of action for breach of contract against BSF. The complaint sufficiently alleged that BSF overbilled or billed for […]

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