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Entries by Bruce Freeman

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QUESTION OF FACT WHETHER DEFENDANT’S DOUBLE-PARKED TRUCK MERELY FURNISHED THE OCCASION FOR THE MOTORCYCLE ACCIDENT OR WAS A PROXIMATE CAUSE OF THE ACCIDENT; PLAINTIFF FLIPPED OVER THE MOTORCYCLE BRAKING TO AVOID COLLIDING WITH THE TRUCK (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff motorcyclist raised a question of fact whether defendant’s double-parked truck was a proximate cause of the accident. Plaintiff alleged the motorcycle struck a defect in the road which cause the motorcycle to veer toward defendant’s truck. Plaintiff flipped over the motorcycle when he braked to avoid colliding […]

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AN ACTION FOR “STRICT FORECLOSURE” PURSUANT TO RPAPL 1352 ALLOWS THE PURCHASER OF FORECLOSED PROPERTY TO EXTINGUISH ANY POTENTIAL CLAIM TO THE PROPERTY BY A NECESSARY PARTY NOT INCLUDED IN THE ORIGINAL FORECLOSURE PROCEEDINGS (SECOND DEPT). ​

he Second Department explained that an action for “strict foreclosure” pursuant to RPAPL 1352 is properly brought by the purchaser of foreclosed property to extinguish any claim to the property by a necessary party who not named in the foreclosure action: Where, as here, a necessary party was omitted from a foreclosure action, the purchaser […]

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PLAINTIFF BANK’S FAILURE TO COMPLY WITH A STATUS-CONFERENCE SCHEDULING ORDER IN THIS FORECLOSURE ACTION WAS NOT A SUFFICIENT GROUND FOR THE “SUA SPONTE” DISMISSAL OF THE COMPLAINT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the judge should not have, sua sponte, dismissed the complaint in this foreclosure action based upon plaintiff’s failure to file a motion for judgment of foreclosure by a specified date: … [A] status conference order was entered … which … directed the plaintiff to file a motion for […]

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APPEAL FROM A DENIAL OF A MOTION TO REARGUE CONSIDERED DESPITE THE DISMISSAL OF THE APPEAL FROM THE INITIAL DENIAL OF SUMMARY JUDGMENT FOR FAILURE TO PROSECUTE; PLAINTIFF’S LABOR LAW240(1) CAUSE OF ACTION STEMMING FROM A FALL INTO A PIT SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined: (1) the appeal from the denial of a motion to reargue would be considered even though the appeal from the initial denial of summary judgment was dismissed for failure to prosecute; (2) the Labor Law 240(1) cause of action stemming from plaintiff’s fall into a pit should not […]

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THE ATTORNEY GENERAL’S PETITION ALLEGING RESPONDENT DISINFECTANT-DISTRIBUTOR ENGAGED IN PRICE GOUGING AT THE OUTSET OF THE COVID-19 PANDEMIC SHOULD NOT HAVE BEEN DISMISSED; THE CONTROLLING STATUTE, GENERAL BUSINESS LAW 396-R, IS NOT VOID FOR VAGUENESS (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Higgitt, reversing Supreme Court, determined the attorney general’s (AG’s) petition alleging that the respondent distributor (Quality King Distributors, Inc) engaged in price gouging should not have been dismissed. The petition alleged Quality King raised the price of Lysol, a disinfectant, at the outset of the COVID-19 […]

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ALTHOUGH NEW YORK DID NOT HAVE JURISDICTION OVER THE MICHIGAN CUSTODY ORDER; FAMILY COURT SHOULD HAVE EXERCISED TEMPORARY EMERGENCY JURISDICTION AND HELD A HEARING ON THE CHILD’S SAFETY; THE CHILD WAS IN NEW YORK DURING FATHER’S PARENTING TIME WHEN FATHER BROUGHT A NEGLECT/CUSTODY PETITION IN NEW YORK (THIRD DEPT).

The Third Department, reversing Family Court, determined, although Family Court properly dismissed father’s neglect/custody petition on the ground New York did not have jurisdiction over the Michigan custody order, Family Court should have ordered a hearing about the child’s safety pursuant to the court’s temporary emergency jurisdiction. The child was in New York during father’s […]

STORED SHEETROCK PANELS WHICH FELL OVER ON PLAINTIFF DID NOT CONSTITUTE THE KIND OF ELEVATION/GRAVITY-RELATED INCIDENT COVERED BY LABOR LAW 240(1) (SECOND DEPT). ​

The Second Department determined sheetrock panels which were stored upright and fell over on plaintiff did not constitute an elevation-related hazard within the meaning of Labor Law 240(1): “The extraordinary protections of Labor Law § 240(1) extend only to a narrow class of special hazards, and do ‘not encompass any and all perils that may […]

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THE NONPARTY SUBPOENA SHOULD NOT HAVE BEEN QUASHED AND THE RELATED PROTECTIVE ORDER SHOULD NOT HAVE BEEN ISSUED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the nonparty subpoena should not have been quashed and the related protective order should not have been issued. The nonparty, Bijari, listed for sale the real property where plaintiff was injured. Plaintiff sought information about the sale because the information could be relevant to whether the homeowner’s exemption […]

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THE COUNTY HAD TIMELY KNOWLEDGE OF THE NATURE OF PETITIONER’S EXCESSIVE-FORCE CLAIM AGAINST THE POLICE AND DID NOT DEMONSTRATE PREJUDICE FROM THE DELAY IN FILING A NOTICE OF CLAIM; THAT PETITIONER DID NOT HAVE AN ADEQUATE EXCUSE WAS NOT DETERMINATIVE; THE APPLICATION TO SERVE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined petitioner’s application to file a late notice of claim in this “excessive force” action against the police should have been granted. The county had timely knowledge of the nature of the claim and the county did not demonstrate prejudice from the delay. The absence of an adequate excuse […]

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AN AGREEMENT SIGNED BY THE PLAINTIFF IN THIS MEDICAL MALPRACTICE ACTION REQUIRING THE DEPOSITION OF EXPERT WITNESSES 120 DAYS BEFORE TRIAL IS VOID AND UNENFORCEABLE AS AGAINST THE POLICY UNDERLYING THE EXPERT DISCLOSURE PROVISIONS OF THE CPLR (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Maltese, determined the agreement signed by plaintiff in this medical malpractice action which required the deposition of expert witnesses 120 days before trial was void and unenforceable: The issue on this appeal is whether the defendants Benjamin M. Schwartz, M.D., and Island Gynecologic Oncology, PLLC (hereinafter […]

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