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Entries by Bruce Freeman

THE “INTERNAL AFFAIRS DOCTRINE,” WHICH ADDRESSES RELATIONSHIPS BETWEEN A COMPANY AND ITS DIRECTORS AND SHAREHOLDERS, APPLIES TO THE OFFICERS AND DIRECTORS AT THE TIME OF THE CONDUCT ALLEGED IN THE LAWSUIT, NOT AT THE TIME THE LAWSUIT WAS BROUGHT; CONTRARY AUTHORITY SHOULD NO LONGER BE FOLLOWED (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined the “internal affairs doctrine” required the application of the law of the jurisdiction of FanDuel, a Scottish company.  The “internal affairs doctrine” addresses the relationships between a company and its directors and shareholders. The doctrine applies to officers and directors at the time of the conduct alleged in […]

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THE MAJORITY DETERMINED PLAINTIFF DID NOT TIE HIS DIMINISHED RANGE OF MOTION TO THE TRAFFIC ACCIDENT, AS OPPOSED TO HIS PRE-EXISTING CONDITIONS, AND THEREFORE PLAINTIFF DID NOT DEMONSTRATE “SERIOUS INJURY;” THE DISSENT ARGUED THE NATURE OF THE ACCIDENT (DEFENDANTS’ TRUCK REAR-ENDED PLAINTIFF’S CAR AT 45 MILES PER HOUR) SHOULD BE CONSIDERED AND DEFENDANT MUST TAKE THE PLAINTIFF AS HE OR SHE FINDS HIM (THIRD DEPT). ​

The Third Department, over a two-justice dissent, determined plaintiff did not raise a question of fact about whether he suffered serious injury within the meaning of Insurance Law 5102 in this rear-end traffic accident case. [Editor’s Note: Decisions determining whether plaintiff suffered “serious injury” within the meaning of the No-Fault Law are not covered in […]

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A DRAINAGE GRATE WHICH DOES NOT VIOLATE ANY CODE AND WHICH IS NOT DEFECTIVE IS NOT A DANGEROUS CONDITION SIMPLY BECAUSE IT WAS WET FROM RAIN AT THE TIME OF THE SLIP AND FALL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the drainage grate on which plaintiff slipped and fell was not a dangerous or defective condition. The grate did not violate any code and was not defective. The fact that the grate was wet from falling rain did not demonstrate a dangerous condition: A property owner has […]

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THERE WERE DISPUTED FACTS CONCERNING WHETHER DEFENDANT BREACHED THE COOPERATION AGREEMENT; THE JUDGE SHOULD HAVE HELD A HEARING TO RESOLVE THE DISPUTED FACTS; DEFENDANT’S CONVICTION BY GUILTY PLEA REVERSED (SECOND DEPT).

The Second Department, reversing defendant’s conviction by guilty plea, determined the judge should not have determined defendant breached the cooperation agreement without a hearing. The prosecutor argued defendant breached the agreement by not providing information which defendant didn’t reveal until he was about to testify against a codefendant in accordance with the agreement. The defendant […]

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THE EVIDENCE DID NOT SUPPORT THE FINDING MOTHER NEGLECTED HER TWO-MONTH OLD CHILD BY EXPOSING THE CHILD TO DOMESTIC VIOLENCE; THAT THE CHILD MAY HAVE HEARD LOUD ARGUING BEFORE GRANDMOTHER TOOK THE CHILD TO HER APARTMENT WAS NOT ENOUGH (SECOND DEPT).

The Second Department, reversing Family Court, determined the evidence did not support finding mother abused her two-month old child. The child, who was removed from the scene by the grandmother before the acts of domestic violence took place: “‘[A] finding of neglect is proper where a preponderance of the evidence establishes that the child’s physical, […]

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ALTHOUGH FATHER DEMONSTRATED HIS FAILURE TO PAY CHILD SUPPORT WAS NOT WILLFUL, FAMILY COURT SHOULD HAVE ENTERED A MONEY JUDGMENT BASED ON HIS FAILURE TO OBEY THE LAWFUL ORDER OF CHILD SUPPORT (SECOND DEPT). ​

The Second Department, modifying Family Court, determined that although father demonstrated his failure to pay child support was not willful, a money judgment for father’s failure to obey a lawful order of child support should have been entered: “Proof of failure to pay child support as ordered constitutes prima facie evidence of willful violation of […]

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THE EVIDENCE SUPPORTED THE FINDING OF A SINGLE INSTANCE OF NEGLECT OF FATHER’S 14-YEAR-OLD DAUGHTER; BUT THAT EVIDENCE DID NOT SUPPORT A FINDING OF DERIVATIVE NEGLECT RE: FATHER’S YOUNGER DAUGHTER (SECOND DEPT). ​

The Second Department, reversing (modifying) Family Court, determined the evidence supporting the finding that father abused his 14-year-old daughter, Heymi M., on one occasion on a camping trip, but that evidence did not support the finding of derivative neglect re: the younger child, Katherine L.: … [T]here was a nine-year age difference between Heymi M., […]

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DEFENDANT’S GENERAL AWARENESS THAT PUDDLES FORMED IN THE AREA OF PLAINTIFF’S SLIP AND FALL AND THAT WATER TURNS TO ICE WAS NOT ENOUGH TO DEMONSTRATE DEFENDANT HAD CONSTRUCTIVE NOTICE OF THE ICY CONDITION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff did not demonstrate defendant had constructive notice of the icy condition where she slipped and fell. The fact that defendant may have been aware that puddles of water formed in that area was not enough: The plaintiff’s submissions demonstrated that the defendant had a general awareness that […]

IF THE NOTE OF ISSUE HAS BEEN VACATED, THE CPLR 3404 REQUIREMENTS FOR RESTORING THE ACTION TO THE CALENDAR DO NOT APPLY; THERFORE THE MOTION TO RESTORE NEED NOT BE MADE WITHIN A YEAR AND NEED NOT DEMONSTRATE A MERITIORIOUS CAUSE OF ACTION, REASONABLE EXCUSE, NO INTENT TO ABANDON, AND LACK OF PREJUDICE TO DEFENDANT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion to restore the action to the active calendar should have been granted. Although the action had been stricken from the trial calendar more than a year before, the requirements of CPLR 3404 (demonstration of a meritorious cause of action, reasonable excuse, no intent to abandon and […]

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THE JUDGE SHOULD HAVE GRANTED DEFENDANTS’ ATTORNEY’S REQUEST FOR AN INTERPRETER; A NEW HEARING TO DETERMINE THE VALIDITY OF SERVICE OF PROCESS IN THIS FORECLOSURE ACTION WAS REQUIRED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ attorney’s request for an interpreter should have been granted. Defendant Rowshan claimed she was never served in this foreclosure action and she testified at the hearing on the validity of the service of process: Pursuant to 22 NYCRR 217.1(a), “[i]n all civil . . . cases, when […]

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