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Entries by Bruce Freeman

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HERE THE LANGUAGE IN THE RELEASE WAS CLEAR AND UNAMBIGUOUS AND NONE OF THE TRADITIONAL FACTORS WHICH INVALIDATE A CONTRACT WERE PRESENT; DEFENDANT’S MOTION TO DISMISS THE COMPLAINT SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the release signed by plaintiff in this snowmobile accident case was enforceable and the complaint should have been dismissed. Plaintiff was a passenger on the snowmobile and she and the driver were represented by the same law firm. The settlement was for $25,000. Plaintiff signed the release but […]

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IT IS ONLY PURSUANT TO EXECUTIVE LAW 63(3) THAT THE ATTORNEY GENERAL (AS OPPOSED TO A COUNTY PROSECUTOR) IS EMPOWERED BRING A CRIMINAL PROSECUTION; THE EXECUTIVE LAW ALLOWS REQUESTS FOR AN AG PROSECUTION ONLY FROM THE EXECUTIVE BRANCH, NOT THE JUDICIAL BRANCH; HERE THE CHIEF JUDGE REQUESTED THE PROSECUTION; A WRIT OF PROHIBITION ENJOINING THE PROSECUTION WAS GRANTED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Higgitt, determined the petitioner’s request for a writ of prohibition to enjoin the attorney general (AG) from prosecuting him for alleged criminal offenses should be granted. The request for the prosecution came from a judge. Executive Law 63(3) does not authorize a request for prosecution from […]

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BOTH PARTIES MOVED TO EXTEND THE DEADLINE FOR FILING A NOTE OF ISSUE BECAUSE DISCOVERY WAS NOT COMPLETE; DENYING THE MOTION MADE IT IMPOSSIBLE FOR THE CASE TO PROGRESS; SUPREME COURT REVERSED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the motion to extend the deadline for filing the note of issue should not have been denied because discovery was incomplete: The motion court improvidently denied the motions of both parties to extend the deadline to file the note of issue and to complete discovery since discovery was […]

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DEFENDANT, WHO WAS CHARGED WITH STRIKING A SMALL DOG WITH A BROOM HANDLE, WAS NOT ENTITLED TO THE “CHOICE OF EVILS” INSTRUCTION TO THE GRAND JURY; DEFENDANT ARGUED HE STRUCK THE DOG TO PREVENT A “GREATER EVIL,” I.E., AN INFECTION FROM A BITE; THE EVIDENCE DID NOT SUPPORT THE DEFENDANT’S ARGUMENT BECAUSE DEFENDANT TESTIFIED STRIKING THE DOG WAS AN ACCIDENT (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Rivera, determined the defendant was not entitled to a “choice of evils” instruction in the grand jury proceedings. Defendant was charged with criminal mischief under Penal Law § 145.10, aggravated cruelty to animals under Agriculture and Markets Law § 353-a, and Overdriving, Torturing, or Injuring […]

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IN THIS FORECLOSURE ACTION DEFENDANT DEBTOR ENTERED A MORTGAGE MODIFICATION AGREEMENT WHICH CALLED FOR THREE PAYMENTS; DEFENDANT DEBTOR MADE FOUR ADDITIONAL PAYMENTS IN AMOUNTS HIGHER THAN CALLED FOR IN THE MORTGAGE; THE PAYMENTS AMOUNTED TO AN ACKNOWLEDGMENT OF THE MORTGAGE DEBT WHICH STARTED THE STATUTE OF LIMITATIONS FOR FORECLOSURE ON THE DATE OF THE LAST PAYMENT (CT APP). ​

The Court of Appeals, reversing the appellate division, determined the defendant debtor acknowledged the mortgage debt by paying more than was required by the Home Affordable Modification Trial Payment Plan. Therefore the statute of limitations for foreclosure started running when defendant debtor made the last payment: In this mortgage foreclosure action, plaintiff contends that Supreme […]

THE ENABLING ACT WHICH TASKED A LEGISLATIVE COMMITTEE WITH DECIDING WHETHER THE SALARIES OF LEGISLATORS AND STATE OFFICIALS SHOULD BE INCREASED IS CONSTITUTIONAL (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Cannataro, over an extensive concurring opinion and a two-judge dissent, determined the enabling act which empowered a committee to decide whether to increase the salaries of legislators and state officials was constitutional. The opinions are far too comprehensive to fairly summarize here: In this declaratory […]

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THE APPELLATE DIVISION AFFIRMED DEFENDANT’S CONVICTION BY GUILTY PLEA AFTER A FLAWED SPEEDY-TRIAL ANALYSIS OF THE EIGHT-YEAR PRE-INDICTMENT DELAY; THE COURT OF APPEALS REVERSED, EXPLAINED THE FLAWS AND REMITTED THE MATTER FOR A NEW ANALYSIS (CT APP). ​

The Court of Appeals, reversing the appellate division’s affirmance of defendant’s (Johnson’s) conviction by guilty plea and remitting the matter for another analysis, in a full-fledged opinion by Judge Wilson, determined the appellate division did not properly apply the “Taranovich” criteria to the eight-year pre-indictment delay in this rape/sexual abuse case. In People v Taranovich, […]

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THE BIG APPLE MAP RAISED A QUESTION OF FACT ABOUT WHETHER THE CITY HAD WRITTEN NOTICE OF THE SIDEWALK DEFECT WHICH ALLEGEDLY CAUSED PLAINTIFF’S SLIP AND FALL; PLAINTIFF’S COMPLAINT WAS AMENDED TO FIX A DEFICIENCY IN PLEADING THAT THE CITY HAD WRITTEN NOTICE OF THE DEFECT (FIRST DEPT).

​The First Department, reversing Supreme Court, determined: (1) there was a question of fact whether the Big Apple map provided the city with written notice of the sidewalk defect alleged to have caused plaintiff’s slip and fall; (2) the city’s evidence to the contrary was improperly first submitted in reply; (3) the plaintiff was entitled […]

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DEFENDANT’S EMPLOYER (TOMS) WAS NOT LIABLE FOR THE ACTS OF DEFENDANT EMPLOYEE (ROSNER) WHICH WERE NOT DONE WITHIN THE SCOPE OF ROSNER’S EMPLOYMENT OR TO FURTHER TOMS’ BUSINESS (FIRST DEPT). ​

​The First Department, reversing Supreme Court, determined that defendant Rosner, an employee of defendant TOMS Capital Management, was clearly not acting within the scope of his employment with TOMS when advising plaintiff on investments, allegedly as part of a scheme to deplete plaintiff’s assets. Therefore plaintiff’s unjust enrichment and negligence causes of action against TOMS […]

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NEW YORK DOES NOT HAVE GENERAL OR LONG-ARM JURISDICTION OVER A UK CORPORATION WHICH ALLEGEDLY MANUFACTURED A DEFECTIVE PART OF AN EXCAVATOR (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined the Miller defendants, a UK corporation, were not amenable to general or long-arm jurisdiction in New York. Plaintiff alleged a part (a coupler) made by Miller failed causing an excavator bucket to detach and fall: General jurisdiction exists over a corporate entity only in the state(s) in which […]

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