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Entries by Bruce Freeman

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​ IN THIS FORECLOSURE ACTION, THE REQUEST FOR A SETTLEMENT CONFERENCE PURSUANT TO CPLR 3408 WAS NOT APPROPRIATE BECAUSE THE BORROWER WAS DECEASED; BECAUSE, UNDER THE FACTS, A SETTLEMENT CONFERENCE WAS NOT A PREREQUISITE FOR FILING A DEFAULT JUDGMENT, THE REQUEST FOR A CONFERENCE DID NOT HOLD THE FORECLOSURE ACTION IN ABEYANCE AND IT SHOULD HAVE BEEN DISMISSED AS ABANDONED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the foreclosure action must be dismissed as abandoned. Plaintiff argued that its request for a settlement conference pursuant to CPLR 3408 constituted “the taking of proceedings” within one year of the default and therefore dismissal of the action as abandoned was precluded. The First Department agreed that, under […]

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QUESTIONS OF FACT WHETHER DEFENDANT POLICE OFFICER ACTED WITH “RECKLESS DISREGARD” FOR THE SAFETY OF OTHERS DURING A POLICE CHASE PRECLUDED SUMMARY JUDGMENT; PLAINTIFF POLICE OFFICER WAS INJURED WHEN HER PATROL CAR WAS STRUCK BY THE PURSUED CAR (SECOND DEPT).

The Second Department, reversing Supreme Court, determined there were questions of fact whether defendant police officer, Encarnation, acted with “reckless disregard” during a police chase. The pursued car crashed into plaintiff police officer’s, Corsi’s, patrol car. Defendant Encarnation worked for the Village of Ossining police department. Plaintiff Corsi worked for the Village of Briarcliff Manor […]

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ALTHOUGH THE FAILURE TO SUBMIT A “NON-MILITARY AFFIDAVIT” DEMONSTRATING DEFENDANT IS NOT IN THE MILITARY IS A VALID GROUND FOR DENYING A MOTION TO ENTER A DEFAULT JUDGMENT, IT IS NOT A GROUND FOR VACATING A DEFAULT JUDGMENT UNLESS THE DEFENDANT DEMONSTRATES HE OR SHE WAS, IN FACT, IN THE MILITARY (SECOND DEPT). ​

The Second Department, in a full-fledged opinion by Justice Genovesi, determined: (1) although the default judgement in this breach of contract action was improperly entered because a so-called “non-military affidavit” demonstrating defendant was not in the military was not submitted by the plaintiff, the absence of a “non-military affidavit” does not warrant vacatur of the […]

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IN THIS “BAR FIGHT” “INADEQUATE SECURITY” ACTION, THE DEFENDANT BAR HAD TIMELY SUED ITS SECURITY COMPANY AS A THIRD-PARTY DEFENDANT; AFTER THE STATUTE OF LIMITATIONS EXPIRED, PLAINTIFF SOUGHT TO SUE THE SECURITY COMPANY DIRECTLY UNDER A “RELATION BACK” THEORY; PLAINTIFF’S MOTION TO SERVE AND FILE AN AMENDED COMPLAINT AGAINST THE SECURITY COMPANY DIRECTLY SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the motion for leave to serve and file an amended complaint adding defendant security company, MAS, after the statute of limitations had expired, should have been granted. Plaintiff was punched in a bar owned by defendant B&M. Plaintiff sued the bar alleging inadequate security, The bar then sued […]

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DEFENDANTS IN THIS BREACH OF CONTRACT ACTION SHOULD HAVE BEEN SANCTIONED FOR SPOLIATION OF EVIDENCE, I.E., THE DESTRUCTION OR LOSS OF EMAILS; PLAINTIFFS’ MOTION TO STRIKE THE ANSWER WAS PROPERLY DENIED; HOWEVER, PLAINTIFFS WERE ENTITLED TO AN ADVERSE INFERENCE JURY INSTRUCTION AT TRIAL (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined defendants should have been sanctioned for spoliation of evidence, i.e., the failure to preserve relevant emails. The plaintiffs alleged defendants performed faulty renovation-work and thereby breached the renovation contract: “Under the common-law doctrine of spoliation, when a party negligently loses or intentionally destroys key evidence, the responsible […]

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A NEW APPLICATION FOR APPROVAL OF CONSTRUCTION OF A STORAGE FACILITY SUBMITTED WHILE THE CHALLENGE TO A PRIOR APPLICATION WAS PENDING REQUIRED A NEW SITE PLAN REVIEW OR A WRITTEN DETERMINATION WAIVING A NEW REVIEW; MATTER REMITTED TO THE PLANNING BOARD (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the Planning Board, when faced with a new application for approval of construction of a storage facility while a challenge to the prior application was still pending, should have conducted a new site plan review or issued a written determination waiving a new site plan review. The matter […]

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RESPONDENT THREATENED SELF HARM AND WAS TAKEN INTO CUSTODY PURSUANT TO THE MENTAL HYGIENE LAW; THE JUDGE DECLINED TO ISSUE A TEMPORARY “EXTREME RISK PROTECTION ORDER” (ERPO) AND SET THE MATTER DOWN FOR A HEARING; SUBSEQUENTLY THE JUDGE, SUA SPONTE, CANCELED THE HEARING AND DISMISSED THE PETITION, ACTIONS FOR WHICH THE JUDGE HAD NO AUTHORITY; MATTER REMITTED FOR A HEARING (THIRD DEPT).

The Third Department, reversing Supreme Court, determined that the judge, who had declined to issue a temporary “extreme risk protection order” (ERPO) for respondent and had set the matter down for a hearing, did not have the authority to, sua sponte, cancel the hearing and dismiss the petition. After respondent had threatened self harm he […]

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PLAINTIFF RADIATION ONCOLOGIST, THE SOLE SHAREHOLDER IN PLANTIFF PROFESSIONAL SERVICE CORPORATION, WHICH PAID PLAINTIFF ONCOLOGIST’S SALARY, SUCCESSFULLY SUED THE HOSPITAL WHICH EMPLOYED HIM FOR BREACH OF CONTRACT; THE COURT, IN A MATTER OF FIRST IMPRESSION, HELD THAT PLAINTIFF’S SALARY WAS NOT A CORPORATE EXPENSE AND THEREFORE WAS RECOVERABLE AS LOST PROFITS IN THE BREACH OF CONTRACT ACTION (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Fisher, determined plaintiff’s salary, paid to hm as the sole shareholder in a professional service corporation, was not a corporate expense and therefore could be recoverable as damages for lost profits in this breach of contract action. Plaintiff, a radiation oncologist, successfully sued the hospital for […]

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7/8 INCH HEIGHT DIFFERENTIAL BETWEEN THE FLOOR AND DOORWAY THRESHOLD WAS DEEMED TRIVIAL AS A MATTER OF LAW IN THIS SLIP AND FALL CASE; THE NYC BUILDING CODE, WHICH REQUIRES A HEIGHT DIFFERENTIAL OF NO MORE THAN 1/2 INCH, DID NOT APPLY TO THE HOME PURCHASED IN 1980 (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined the 7/8 height-differential between the floor and the threshold was trivial as a matter of law in thus slip and fall case. The court noted that the NYC Building Code, which requires a height-differential of no more than 1/2 inch did not apply to the home which […]

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THE “REFRAIN FROM GANG-RELATED ASSOCIATIONS” PROBATION CONDITIONS WERE STRUCK BECAUSE THERE WAS NO EVIDENCE DEFENDANT HAD ANY CONNECTION WITH GANGS (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined a probation condition imposed by the court must be stricken because it was not shown to be related to “defendant’s rehabilitative prospects:”​ Defendant’s challenges to two of his probation conditions as unrelated to his rehabilitation do not require preservation and survive his waiver of the right to […]

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