You are here: / Bruce Freeman

Entries by Bruce Freeman

,

ALTHOUGH THE HOME-INSPECTION CONTRACT WAS NOT SIGNED, PLAINTIFF TESTIFIED SHE WAS AWARE OF THE TERMS OF THE CONTRACT AND AGREED TO THEM; THEREFORE THE UNSIGNED CONTRACT WAS ENFORCEABLE AND PLAINTIFF’S FAILURE TO COMPLY WITH THE NOTIFICATION PROVISION ENTITLED DEFENDANT TO SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant home-inspection company was entitled to enforcement of a provision in an unsigned contract. The home inspection contract provided that defendant would not be liable if plaintiff failed to timely notify defendant of any alleged defects in the property. Defendant moved for summary judgment based on plaintiff’s failure […]

, ,

THE JURY FOUND PLAINTIFF SUFFERED PERMANENT INJURY IN THE TRAFFIC ACCIDENT BUT AWARDED $0 DAMAGES FOR FUTURE PAIN AND SUFFERING AND FUTURE MEDICAL EXPENSES; THE DAMAGES AWARD WAS AGAINST THE WEIGHT OF THE EVIDENCE AND SHOULD HAVE BEEN SET ASIDE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the damages-award in this traffic accident case was against the weight of the evidence. The jury found that plaintiff suffered permanent injuries but awarded nothing for future pain and suffering and future medical expenses. Plaintiff’s motion to set aside the verdict pursuant to CPLR 4404(a) should have been […]

,

DEFENDANTS’ REPEATED FAILURES TO COMPLY WITH DISCOVERY DEMANDS WARRANTED STRIKING THE ANSWER AND COUNTERCLAIMS; SUPREME COURT HAD IMPOSED LESS SEVERE SANCTIONS, BUT THE APPELLATE COURT REVERSED AND IMPOSED THE ULTIMATE SANCTION–A RARE EXAMPLE OF CONDUCT DEEMED “WILLFUL AND CONTUMACIOUS” (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants-landlords’ answer and counterclaims in this lease-related dispute with the plaintiff-tenant. should have been struck as a sanction for defendants’ repeated failures to comply with discovery demands: Before imposing the “drastic” remedy of striking a pleading, there must be a clear showing that a party’s failure to comply […]

DEFENDANT DID NOT OFFER A REASONABLE EXCUSE FOR FAILING TO TIMELY ANSWER THE COMPLAINT; DEFENDANT’S MOTION TO VACATE THE DEFAULT JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined defendant’s motion to vacate the default judgment should not have been granted because defendant did not offer a reasonable excuse for the failure to timely answer: Supreme Court should have denied the defendant’s cross motion, in effect, to vacate its default in answering the complaint and to compel […]

, , ,

EVIDENCE OF COMPLIANCE WITH THE NOTICE-OF-FORECLOSURE MAILING REQUIREMENTS OF RPAPL 1304 FIRST SUBMITTED IN REPLY SHOULD NOT HAVE BEEN CONSIDERED; THE EVIDENCE THE BANK HAD STANDING TO BRING THE FORECLOSURE ACTION WAS INSUFFICIENT (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined plaintiff’s proof of mailing of the foreclosure notice first submitted in reply should not have been considered, and plaintiff did not demonstrate it had standing to bring the foreclosure action: … [T]he affidavits that the plaintiff appended to its moving papers failed to establish that the RPAPL 1304 […]

, , ,

ONCE PLAINTIFF’S FORECLOSURE ACTION WAS DISCONTINUED BY STIPULATION, THE FORECLOSURE COMPLAINT COULD BE AMENDED TO SEEK RECOVERY ON THE NOTE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the plaintiff, after its foreclosure action was discontinued, could amend the foreclosure complaint to seek recovery on the note: “‘RPAPL 1301(3) . . . prohibits a party from commencing an action at law to recover any part of the mortgage debt while the foreclosure proceeding is pending or […]

,

PLAINTIFF’S EXPERT’S AFFIDAVIT DID NOT RAISE A QUESTION OF FACT WHETHER THE DEFENDANT PROPERTY OWNERS HAD CONSTRUCTIVE KNOWLEDGE OF THE DETERIORATION OF A TREE LIMB WHICH FELL ON PLANTIFF’S CAR (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined defendant property owners (Monacos) did not have constructive notice of the deteriorated condition of a tree limb which fell on plaintiff’s car: In cases involving fallen trees, a property owner will only be held liable for a tree that falls outside of his or her premises and injures […]

,

THE RULING THAT PETITIONER-CORRECTION-OFFICER’S DISABLING CONDITION WAS NOT CAUSED BY AN ALTERCATION WITH AN INMATE WAS SUPPORTED BY “SUBSTANTIAL EVIDENCE;” “SUBSTANTIAL EVIDENCE” IN THIS CONTEXT IS DEFINED (SECOND DEPT).

The Second Department, reversing Supreme Court, over a dissent, determined that substantial evidence supported the ruling by the Board of Trustees of the New York City Employees’ Retirement System (hereinafter the Board of Trustees) that petitioner-correction-officer’s disabling condition was not related to an altercation with an inmate. Therefore petitioner was not entitled to disability benefits. […]

,

AFTER THE INCAPACITATED PERSON’S DEATH, THE GUARDIAN OF THE PROPERTY IS ALLOWED TO PAY ADMINISTRATIVE EXPENSES, BUT NOT CLAIMS UNRELATED TO ADMINISTRATIVE EXPENSES, FROM THE GUARDIANSHIP ESTATE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the guardian (Mock) of the incapacitated person’s (Lillian’s) property should not have been ordered to pay a claim out of the guardianship estate after Lillian’s death. Only administrative expenses can be paid out of the guardianship estate: Mock’s authority as the guardian of Lillian’s property expired with Lillian’s […]

,

PETITIONER’S APPLICATION FOR A PISTOL PERMIT SHOULD HAVE BEEN GRANTED; NEW YORK’S “PROPER CAUSE” STANDARD IS NO LONGER APPLICABLE PURSUANT THE US SUPREME COURT’S RULING IN “NEW YORK STATE RIFLE & PISTOL ASSN V BRUEN” (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined the recent US Supreme Court decision New York State Rifle & Pistol Assn., Inc. v Bruen (597 US _, 142 S Ct 2111 [2022] required that petitioner’s application for a pistol permit be granted. New York’s “proper cause” standard is no longer applicable: Petitioner commenced this CPLR article 78 proceeding […]

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