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Entries by Bruce Freeman

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IN THIS FORECLOSURE DEFICIENCY-JUDGMENT CASE, THE FAIR VALUE OF THE PROPERTY WAS CONSIDERABLY HIGHER THAN THE LIQUIDATION VALUE USED BY THE COURT TO CALCULATE THE DEFICIENCY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the fair market value of the property in this foreclosure-deficiency-judgment proceeding was considerably greater than the liquidation valued used by the court: “RPAPL 1371(2) permits the mortgagee in a mortgage foreclosure action to recover a deficiency judgment for the difference between the amount of indebtedness on the mortgage […]

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THE SUPERIOR COURT INFORMATION (SCI) DID NOT INCLUDE AN OFFENSE CHARGED IN THE FELONY COMPLAINT OR A LESSER INCLUDED OFFENSE; THE SCI WAS THEREFORE JURISDICTIONALLY DEFECTIVE; THE ERROR NEED NOT BE PRESERVED FOR APPEAL (SECOND DEPT).

​The Second Department, reversing defendant’s conviction and vacating the plea, determined the superior court information (SCI) was jurisdictionally defective because it did not include an offense charged in the felony complaint or a lesser included offense of an offense charged in the felony complaint: The defendant was charged, by felony complaint, with one count of […]

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WHETHER THE VILLAGE POLICE WERE ENTITLED TO ADDITIONAL COMPENSATION FOR WORK DURING THE EARLY DAYS OF THE COVID-19 PANDEMIC IS ARBITRABLE (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the issue whether the village police were entitled to additional compensation for work during the early days of the COVID-19 pandemic is arbitrable: Where the relevant arbitration provision is broad, a court “should merely determine whether there is a reasonable relationship between the subject matter of the dispute […]

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THE ADDITIONAL NOTICE REQUIREMENT IN CPLR 3215(G)(4) DOES NOT APPLY TO SERVICE UPON A LIMITED LIABILITY COMPANY, AS OPPOSED TO A CORPORATION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the plaintiff was not required to comply with the additional notice requirement in CPLR 3215(g)(4) which does not apply to service upon a limited liability company (the defendant here), as opposed to corporations: The court [in denying plaintiff’s motion for a default judgment] determined that the plaintiff had […]

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ATTORNEY’S FEES AND EXPERT WITNESS FEES IN THIS MAINTENANCE-ARREARS ACTION SHOULD NOT HAVE BEEN AWARDED WITHOUT AN EVIDENTIARY HEARING (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, determined that the award of attorney’s fees and expert witness fees to defendant-wife who sued for and was awarded maintenance arrears: … Supreme Court erred in awarding attorneys’ fees and expert witness fees requested by the defendant without evaluating the defendant’s claims concerning the extent and value of […]

DEFENDANT CITY DEMONSTRATED IT DID NOT EXERCISE ANY SUPERVISORY CONTROL OVER THE MANNER OF PLAINTIFF’S WORK IN THIS LABOR LAW 200 ACTION; THEREFORE THE CITY’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, determined the city’s motion for summary judgment on the Labor Law 200 cause of action in this construction accident case should have been granted. The city did not exercise any control over the manner of plainitiff’s work: “Labor Law § 200 is a codification of the common-law duty […]

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THE BANK IN THIS FORECLOSURE ACTION FAILED TO LAY A FOUNDATION FOR THE BUSINESS RECORDS REQUIRED TO SHOW STANDING TO BRING THE ACTION AND DID NOT SUBMIT SUFFICIENT PROOF OF COMPLIANCE WITH THE NOTICE-OF-DEFAULT MAILING REQUIREMENTS OF RPAPL 1304 (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank in this foreclosure did not demonstrate standing the bring the action and compliance with the notice-of-default mailing requirement of RPAPL 1304: A plaintiff has standing to maintain a mortgage foreclosure action where it is the holder or assignee of the underlying note at the time the […]

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THE BANK IN THIS FORECLOSURE ACTION FAILED TO DEMONSTRATE COMPLIANCE WITH THE NOTICE-OF-DEFAULT MAILING REQUIREMENTS OF RPAPL 1304 (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank in this foreclosure action did not demonstrate compliance with the notice-of-default mailing requirements of RPAPL 1304: “RPAPL 1304(1) provides that, ‘at least ninety days before a lender, an assignee or a mortgage loan servicer commences legal action against the borrower . . . , including mortgage […]

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FAILURE TO SUBMIT THE BUSINESS RECORDS NECESSARY TO DEMONSTRATE DEFENDANTS’ DEFAULT IN THIS FORECLOSURE ACTION REQUIRED DENIAL OF THE BANK’S SUMMARY JUDGMENT MOTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank’s failure to submit the business records necessary to establish the defendants’ default in this foreclosure action precluded summary judgment in favor of the bank: In support of the motion, the plaintiff submitted an affidavit from Helen Fraser, a vice president of document control of CitiMorgage, Inc. […]

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ABSENT FRAUD, COLLUSION OR A MALICIOUS OR TORTIOUS ACT, DEFENDANT ATTORNEYS COULD NOT BE LIABLE FOR ACTING WITHIN THE SCOPE OF THEIR AUTHORITY AS AGENTS OF THE CLIENTS AND ALLEGEDLY ADVISING THEIR CLIENTS TO BREACH A CONTRACT WITH PLAINTIFFS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant attorneys (Jin Hu defendants) could not be liable to third parties (plaintiffs) for allegedly advising their clients (DeVito defendants) to breach a real estate purchase contract: … “[I]nasmuch as the relationship created between an attorney and his client is that of principal and agent, an attorney […]

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