You are here: / Bruce Freeman

Entries by Bruce Freeman

, ,

EVEN THOUGH DEFENDANT WAIVED HIS RIGHT TO BE PRESENT AT THE SORA RISK-LEVEL ASSESSMENT PROCEEDING, HE DID NOT WAIVE HIS RIGHT TO EFFECTIVE COUNSEL; COUNSEL DID NOT COMMUNICATE WITH DEFENDANT AND DID NOT PRESENT A DEFENSE; ORDER REVERSED (THIRD DEPT).

The Third Department, reversing County Court, determined that, although defendant waived his right to be present at the SORA risk-assessment proceeding, he did not waive his right to effective assistance of counsel. Counsel did not communicate with the defendant and did not present a defense at the hearing: “SORA defendants have the right to the […]

, , , ,

A CITY CODE ENFORCEMENT OFFICER ORDERED PETITIONER-TENANT TO VACATE HER APARTMENT AFTER FINDING SOME WINDOWS DID NOT OPEN; PENDING THE INSTANT APPEAL, THE CITY AMENDED THE CODE TO ALLOW A HEARING IN THIS CIRCUMSTANCE (RELIEF REQUESTED BY THE PETITIONER); THE CODE ENFORCEMENT OFFICER WAS AN AGENT OF THE STATE AND PETITIONER WAS ENTITLED TO COSTS, DISBURSEMENTS AND COUNSEL FEES AS THE PREVAILING PARTY IN THIS ACTION AGAINST THE STATE (THIRD DEPT). ​

The Third Department, in a full-fledged opinion by Justice Fisher, determined petitioner-tenant was entitled to costs, disbursements and counsel fees in petitioner’s action against the city for ordering petitioner to vacate her apartment without first affording a hearing. The order to vacate was made after the code enforcement officer found windows in the apartment which […]

,

THE VIDEO DID NOT SUPPORT THE CREATING-A-DISTURBANCE CHARGE, DETERMINATION ANNULLED (THIRD DEPT).

The Third Department, annulling the misbehavior determination, found that the video evidence did support the charge: … [S]ubstantial evidence was lacking to support the charge of creating a disturbance … . As relevant here, an incarcerated individual “shall not engage in conduct which disturbs the order of any part of the facility . . .[, […]

, ,

AN AFFIDAVIT WITHOUT THE RELEVANT BUSINESS RECORDS ATTACHED DID NOT DEMONSTRATE THE BANK’S COMPLIANCE WITH THE MAILING REQUIREMENTS OF RPAPL 1304 IN THIS FORECLOSURE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank did not demonstrate compliance with the mailing requirements of RPAPL 1304 and therefore should not have been awarded summary judgment: … [A]lthough the plaintiff submitted a copy of the 90-day notice purportedly sent to the defendant by Green Tree [the loan servicer], it failed to demonstrate, […]

, ,

THE BANK DID NOT SUPPLY THE DOCUMENTS RELIED ON TO SHOW DEFENDANT’S DEFAULT AND DID NOT LAY A PROPER FOUNDATION FOR THE DOCUMENTS RELIED ON TO SHOW COMPLIANCE WITH THE MAILING REQUIREMENTS OF RPAPL 1304; THE BANK’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined plaintiff bank did not attach the business records relied on to prove defendant’s default and did not lay a proper foundation for the records purporting to show compliance with the mailing requirements of RPAPL 1304. Therefore the bank’s motion for summary judgment should not have been granted: The […]

, ,

PLAINTIFF’S EXPERT AFFIDAVIT WAS SPECULATIVE AND WAS NOT SUPPORTED BY MEDICAL RECORDS; DEFENDANT PODIATRIST’S MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE CASE SHOULD HAVE BEEN GRANTED; EXTENSIVE DISSENT (SECOND DEPT). ​

The Second Department, reversing Supreme Court, over an extensive dissent, determined plaintiff’s expert affidavit in this medical malpractice case did not raise a question of fact. Plaintiff’s decedent presented with burns on his foot which were treated by defendant podiatrist, Papathomas. When the wound didn’t heal, defendant podiatrist referred plaintiff’s decedent to a wound clinic, […]

, , ,

IN THIS SLIP AND FALL CASE AGAINST NYC, AT THE SUMMARY JUDGMENT STAGE, ONCE THE CITY DEMONSTRATED IT DID NOT HAVE WRITTEN NOTICE OF THE CONDITION WHICH CAUSED THE FALL, THE PLAINTIFF MUST COME FOWARD WITH EVIDENCE AN EXCEPTION TO THE WRITTEN-NOTICE REQUIREMENT APPLIES, EVEN IF, AS HERE, THE COMPLAINT ALLEGES NO EXCEPTION APPLIES; CASE LAW TO THE CONTRARY SHOULD NO LONGER BE FOLLOWED (SECOND DEPT).

The Second Department, reversing Supreme Court, in a full-fledged opinion by Justice Miller, clarified the burdens of proof at the summary judgment stage where the municipality demonstrates it did not have written notice of the condition which allegedly caused plaintiff’s slip and fall. Once the city demonstrates a lack of written notice, the plaintiff must […]

,

RETROACTIVE IMPOSTION OF THE SUPPLEMENTAL SEX OFFENDER VICTIM FEE DOES NOT VIOLATE THE EX POST FACTO CLAUSE (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Christopher, determined the retroactive imposition of the supplemental sex offender victim fee did not violate the Ex Post Facto Clause of the US Constitution. The fee was deemed to have a revenue-generating purpose, not a punitive purpose, and was not so punitive in effect as to […]

, ,

DEFENDANT WAS ENTITLED TO A HEARING ON WHETHER COUNSEL WAS INEFFECTIVE FOR FAILING TO INFORM HIM OF THE IMMIGRATION CONSEQUENCES OF HIS GUILITY PLEA AND FOR FAILING TO NEGOTIATE A PLEA TO AN OFFENSE WHICH DID NOT MANDATE DEPORTATION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant was entitled to a hearing on his motion to vacate his conviction by guilty plea on ineffective assistance ground. Defendant alleged counsel was ineffective (1) for failing to inform him deportation would be mandatory and (2) for not negotiating a plea to an offense which would not […]

WHERE NEITHER PARENT CAN BE SAID TO HAVE CUSTODY OF THE CHILDREN FOR THE MAJORITY OF THE TIME, THE PARENT WITH THE GREATER RESOURCES SHOULD BE DEEMED THE NONCUSTODIAL PARENT FOR CHILD SUPPORT PURPOSES (SECOND DEPT).

The Second Department, reversing Family Court, in a full-fledged opinion by Justice Iannacci, in a matter of first impression in the Second Department, determined that where custody is effectively shared equally the parent with the greater resources should be deemed the noncustodial parent for child support purposes: We conclude, to the contrary, that the court-ordered […]

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy