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Entries by Bruce Freeman

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CLAIMANTS’ MOTION FOR LEAVE TO FILE AND SERVE A LATE NOTICE OF CLAIM IN THIS CONSTRUCTION-ACCIDENT CASE SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing the Court of Claims, determined claimants’ should have been allowed to file a late notice of claim in this construction accident case. The delay in filing was minimal, claimants made a sufficient showing the defendants were not prejudiced by the delay and defendants did not demonstrate prejudice: The claimants showed that […]

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IN THIS FORECLOSURE ACTION, THE RPAPL 1304 NOTICE DID NOT INCLUDE THE REQUIRED INFORMATION AND THE PROOF OF MAILING OF THE NOTICE WAS DEFICIENT; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined proof of mailing of the RPAPL 1304 notice and failure to comply with the content-requirements for the RPAPL 1304 notice in this foreclosure action warranted denial of the plaintiff’s motion for summary judgment: The respondent failed to establish the plaintiff’s strict compliance with RPAPL 1304. The respondent submitted […]

BECAUSE DEFENDANT OBJECTED TO THE AMOUNT OF RESTITUTION A HEARING TO DETERMINE THE AMOUNT SHOULD HAVE BEEN HELD (SECOND DEPT).

The Second Department, reversing County Court, determined, because the defendant objected to the restitution-amount, a hearing to determine the amount was required: “‘Before a defendant may be directed to pay restitution a hearing must be held if either: (1) the defendant objects to the amount of restitution and the record is insufficient to establish the […]

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THE DIVORCE STIPULATION OF SETTLEMENT REQUIRED DEFENDANT TO PAY THE CHILDREN’S COLLEGE EXPENSES FOR FOUR YEARS AND DID NOT MENTION AN AGE CUT-OFF; SUPREME COURT SHOULD NOT HAVE DETERMINED DEFENDANT’S OBLIGATION CEASED AT AGE 21 (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the stipulation of settlement in the divorce stated that defendant would pay the children’s college expenses for four years with no mention of a cut-off at age 21. Supreme Court should not have ruled that the obligation ceased when the child turned 21: … [T]he stipulation clearly and […]

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PETITIONER DEMONSTRATED A GOOD FAITH EFFORT TO TIMELY FILE AND SERVE HIS OPPOSITION PAPERS AND DEMONSTRATED A POTENTIALLY MERITORIOUS CAUSE OF ACTION; SUPREME COURT HAD REFUSED TO CONSIDER THE OPPOSITION PAPERS BEFORE ISSUING ITS ORDER DISMISSING THE PETITION; THE ORDER SHOULD HAVE BEEN VACATED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined petitioner’s motion to vacate an order dismissing the petition issued after Supreme Court refused to consider petitioner’s opposition papers should have been granted. Petitioner had made a good faith effort to timely file and serve the papers and demonstrated a potentially meritorious cause of action: The petitioner, who […]

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PLAINTIFF’S COUNSEL SHOULD HAVE BEEN HELD IN CRIMINAL CONTEMPT FOR ISSUING SUBPOENAS IN DEFIANCE OF AN ORDER STAYING THE PROCEEDINGS; DIFFERENCE BETWEEN CIVIL AND CRIMINIAL CONTEMPT EXPLAINED (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, determined plaintiff’s counsel should have been found in criminal contempt for issuing subpoenas in defiance of Supreme Court’s order staying any further action in the case: In contrast to civil contempt, because the purpose of criminal contempt is to vindicate the authority of the court, no showing of […]

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ALTHOUGH A FORECLOSURE ACTION USUALLY ACCELERATES THE DEBT AND STARTS THE STATUTE OF LIMITATIONS CLOCK, HERE THE DEFENDANTS-BORROWERS DID NOT DEMONSTRATE THAT THE 2009 FORECLOSURE ACTION SOUGHT THE ENTIRE AMOUNT DUE (THE 2009 COMPLAINT WAS NOT SUBMITTED); THEREFORE THE DEFENDANTS DID NOT DEMONSTRATE THE INSTANT ACTION IS UNTIMELY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendants-borrowers in this foreclosure action did not demonstrate the debt was accelerated by the 2009 foreclosure action. Therefore the complaint in the instant action should not have been dismissed as untimely: … [T]he defendants failed to demonstrate that the debt was validly accelerated by the commencement of […]

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THE BANK’S PROOF OF DEFENDANT’S DEFAULT, MAILING OF THE NOTICE OF DEFAULT, AND COMPLIANCE WITH THE NOTICE REQUIREMENTS OF THE MORTGAGE IN THIS FORECLOSURE ACTION WAS INSUFFICIENT (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the bank’s proof of defendant’s default and mailing of the notice of default was insufficient in this foreclosure action: … [T]he plaintiff failed to establish its prima facie entitlement to judgment as a matter of law, as it failed to submit evidence demonstrating the defendant’s default and that […]

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THE BANK DID NOT DEMONSTRATE COMPLIANCE WITH THE “SEPARATE ENVELOPE” RULE AND THEREFORE DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 1304; THE BANK’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank in this foreclosure action failed to demonstrate the 90-day notice required by RPAPL 1304 was sent to the defendant in a separate envelope: RPAPL 1304(2) also provides, in relevant part, that “[t]he notices required by this section shall be sent by the lender, assignee or mortgage […]

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A MONETARY PENALTY IMPOSED UPON PLAINTIFF’S ATTORNEY, AS OPPOSED TO DISMISSAL OF THE COMPLAINT, WAS THE APPROPRIATE SANCTION FOR PLAINTIFF’S FAILURE TO PROVIDE DISCOVERY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined sanctioning plaintiff’s attorney for failing to provide discovery, rather than dismissal of the complaint, was the best way to handle plaintiff’s inaction: … [T]he plaintiff’s attorneys failed to comply with the defendants’ demands for a bill of particulars and discovery, did not object to those demands, and did […]

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