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Entries by Bruce Freeman

THE FEDERAL POSSESSION-OF-A-FIREARM-BY-A-FELON STATUTE IS NOT THE EQUIVALENT OF A NEW YORK FELONY BECAUSE THE FEDERAL STATUTE DOES NOT REQUIRE A SHOWING THE WEAPON WAS OPERABLE; DEFENDANT’S SECOND FELONY OFFENDER ADJUDICATION VACATED (SECOND DEPT).

The Second Department, vacating defendant’s second felony offender adjudication, determined the federal possession-of-a-firearm-by-a-felon statute is not the equivalent of a New York felony: … [T]he defendant should not have been adjudicated a second felony offender on the basis of a prior federal conviction for possession of a firearm by a felon (see 18 USC § […]

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FATHER, WHO LIVES IN CALIFORNIA, SOUGHT MODIFICATION OF THE CALIFORNIA CUSTODY ORDER; MOTHER, WHO LIVES IN NEW YORK, SOUGHT MODIFICATION OF THE CALIFORNIA ORDER IN NEW YORK; FAMILY COURT CORRECTLY COMMUNICATED WITH THE CALIFORNIA COURT BUT DID NOT ALLOW THE PARTIES TO PRESENT FACTS AND LEGAL ARGUMENTS BEFORE DISMISSING THE NEW YORK PETITION; FAMILY COURT REVERSED (SECOND DEPT).

The Second Department, reversing Family Court, determined Family Court did everything right in dealing with the modification of a California custody order, including communication with the California court, but did not allow the parties to present facts and legal arguments before ruling New York did not have jurisdiction. Father was in California and mother was […]

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IN A HYBRID ACTION SEEKING AN ANNULMENT PURSUANT TO ARTICLE 78 AND A DECLARATORY JUDGMENT (AND DAMAGES), THE BURDENS TO DEMONSTRATE STANDING ARE DIFFERENT; IN AN ARTICLE 78 THE PETITIONER MUST AFFIRMATIVELY DEMONSTRATE STANDING; AND IN A DECLARTORY-JUDGMENT/DAMAGES ACTION, THE RESPONDENT (DEFENDANT) MUST DEMONSTRATE PETITIONER DOES NOT HAVE STANDING AS A MATTER OF LAW TO WARRANT SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, explained the different burdens of proof in an Article 78 proceeding and an action seeking declaratory relief and damages. In an Article 78 proceeding, the petitioner has to show standing as part of its prima facie case. In a declaratory judgment/damages action, the respondent (defendant) has to demonstrate the […]

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ALTHOUGH THE STEP WAS MARKED AND THERE WAS A WARNING SIGN, THERE WAS EVIDENCE THE STEP AND THE SIGN COULD NOT BE SEEN WHEN THE AREA WAS CROWDED; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS STAIR-FALL CASE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this stair-fall case should not have been granted. Although there was evidence the single step in defendant’s nightclub was marked and there was a warning sign, there was also evidence the area was crowded, obscuring the step and the sign: … [T]he […]

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THERE WAS A QUESTION OF FACT WHETHER PLAINTIFF’S MOTORCYCLE WAS SO CLOSE AS TO CONSTITUTE AN IMMEDIATE HAZARD WHEN DEFENDANT ATTEMPTED TO MAKE A LEFT TURN ACROSS PLAINTIFF’S LANE OF TRAFFIC; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff in this intersection traffic accident case should not have been granted summary judgment. Plaintiff motorcyclist collided with defendants’ vehicle as defendant driver was attempting to make a left turn crossing plaintiff’s lane of traffic. The Second Department determined there was a question of fact about whether plaintiff’s […]

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THE BANK IN THIS FORECLOSURE ACTION DID NOT DEMONSTRATE COMPLIANCE WITH RPAPL 1303 WHICH REQUIRES THE NOTICE OF FORECLOSURE TO USE SPECIFIC TYPE SIZES AND A PAPER-COLOR DIFFERENT FROM THE SUMMONS AND COMPLAINT; THE BANK’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined plaintiff  bank in this foreclosure action did not demonstrate strict compliance with RPRL 1303, which requires that the notice of foreclosure use certain sizes of type and a different color paper: RPAPL 1303 requires that a notice titled “Help for Homeowners in Foreclosure” be delivered to the mortgagor […]

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THE BANK’S PROOF THAT THE RPAPL 1304 NOTICE OF FORECLOSURE WAS MAILED TO THE DEFENDANTS WAS INSUFFICIENT; THE BANK’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that plaintiff bank did not demonstrate compliance with the notice requirements of RPAPL 1304 and therefore should not have been awarded summary judgment in this foreclosure action: The affidavits of Daphne Proctor, Theresa Robertson, and April Martin, all of whom were document execution specialists employed by Nationstar Mortgage, […]

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INFANT PLAINTIFF WAS INJURED WHEN HE INADVERTENTLY SLAPPED A DISPLAY CASE IN THE HALL OF A SCHOOL AND THE GLASS SHATTERED; THERE WAS EVIDENCE A SIMILAR INCIDENT HAD OCCURRED IN THE PAST AND SOME OF THE PANELS IN THE DISPLAY CASE WERE MADE OF SHATTERPROOF PLEXIGLASS; PLAINTIFF’S PREMISES-LIABILITY CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined plaintiff’s premises-liability cause of action against defendant school district should not have been dismissed. Infant plaintiff was pretending to play basketball when he inadvertently slapped a display case in the hall of the school and the glass shattered. There was evidence glass in the display case had […]

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PLAINTIFF’S EXPERT’S AFFIDAVIT WAS NOT CONCLUSORY AND SPECULATIVE; DEFENDANT DOCTOR’S MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE CASE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant doctor’s (Falkovsky’s) motion for summary judgment in this medical malpractice case should not have been granted. Although the doctor made out a prima facie case demonstrating there was no departure form good and accepted medical malpractice, plaintiff’s expert raised questions of fact about whether defendant should have […]

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PLAINTIFF DID NOT PRESENT EXPERT OPINION TO SUPPORT THE ALLEGATION HE INHALED SUFFICIENT AMOUNTS OF ASBESTOS TO HAVE CAUSED HIS CANCER; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff in this asbestos-exposure case did not raise a question of fact about whether his exposure to asbestos was sufficient to have caused his cancer. Plaintiff alleged he was exposed to asbestos when he installed defendant ABI’s vinyl floor tiles. Defendant presented evidence from simulation studies and plaintiff […]

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