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Entries by Bruce Freeman

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THE BANK DID NOT OFFER A REASONABLE EXCUSE FOR FAILURE TO TAKE PROCEEDINGS FOR A DEFAULT JUDGMENT WITHIN A YEAR AND DID NOT SUBMIT AN ADEQUATE LOST NOTE AFFIDAVIT; THE DEFAULT JUDGMENT IN THIS FORECLOSURE ACTION SHOULD NOT HAVE BEEN GRANTED; THE ACTION IS DEEMED ABANDONED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank in this foreclosure action did not submit sufficient evidence to support a late motion for default judgment against the borrower. The bank did not offer a reasonable excuse for failure to take proceedings for a default judgment within a year, and did not submit a sufficient […]

IN THIS LABOR LAW 240(1) CASE, PLAINTIFF ALLEGED THE LADDER WAS UNSECURED AND SHIFTED; DEFENDANT ALLEGED PLAINTIFF TOLD HIS SUPERVISOR HE LOST HIS BALANCE AND JUMPED FROM THE LADDER, RAISING A QUESTION OF FACT WHETHER PLAINTIFF’S ACTIONS WERE THE SOLE PROXIMATE CAUSE OF THE ACCIDENT (SECOND DEPT).

The Second Department determined conflicting facts precluded summary judgment in this Labor Law 240(1) ladder-fall case. Plaintiff alleged the ladder was unsecured and shifted when he attempted to descend. The defendant alleged plaintiff told his supervisor he lost his balance and jumped off the ladder which raised a question whether plaintiff’s actions were the sole […]

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THE AFFIDAVIT SUBMITTED BY THE BANK TO PROVE STANDING TO FORECLOSE LAID AN ADEQUATE FOUNDATION FOR THE RELEVANT BUSINESS RECORDS BUT THE RECORDS THEMSELVES WERE NOT SUBMITTED, RENDERING THE AFFIDAVIT HEARSAY; THE BANK DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE PROVISION OF THE MORTGAGE, A CONDITION PRECEDENT (SECOND DEPT).

The Second Department, reversing Supreme Court determined the evidence that the bank had standing to bring the foreclosure action was insufficient and the bank did not demonstrate compliance with the notice provision of the mortgage, a condition precedent. Although the affidavit submitted by the bank laid a sufficient foundation for the business records described in […]

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THE RIGHT LANE WAS FOR RIGHT TURNS ONLY; THE MIDDLE LANE WAS FOR EITHER GOING STRAIGHT OR TURNING RIGHT; HERE THE DRIVER IN THE FAR RIGHT LANE DID NOT TURN RIGHT AND STRUCK THE CAR IN THE MIDDLE LANE WHICH WAS MAKING A RIGHT TURN; THE DRIVER IN THE MIDDLE LANE WAS ENTITLED TO SUMMARY JUDGMENT DISMISSING THE COMPLAINT (SECOND DEPT).

The Second Department, reversing Supreme Court in this traffic accident case, determined plaintiff’s motion for summary judgment against defendant Rubio should not have been granted and defendant Rubio’s motion for summary judgment should have been granted. Plaintiff was a passenger in a taxi driven by defendant Muy-Angamarca. Muy-Angamarca was in the far right lane, which […]

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THE REAL ESTATE PURCHASE CONTRACT DID NOT INCLUDE THE CLOSING DATE OR THE MORTGAGE TERMS; THE CONTRACT WAS THEREFORE UNENFORCEABLE PURSUANT TO THE STATUTE OF FRAUDS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the seller was entitled to summary judgment dismissing the action for specific performance of the real estate purchase contract, because the contract did not meet the requirements of the statute of frauds: Under the statute of frauds, a contract for the sale of real property must be evidenced […]

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THE BANK DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 1303, INCLUDING THE REQUIRED TYPE SIZE; 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 the bank in this foreclosure action did not demonstrate compliance with the notice requirements of RPAPL 1303: “RPAPL 1303 requires that a notice titled ‘Help for Homeowners in Foreclosure’ be delivered to the mortgagor along with the summons and complaint in residential foreclosure actions involving owner-occupied, one- to […]

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THE 2022 CONGRESSIONAL AND STATE SENATE REDISTRICTING MAPS DECLARED VOID BECAUSE THEY WERE DRAWN WITH AN UNCONSTITUTIONAL PARTISAN INTENT (CT APP). ​

The Court of Appeals declared the 2022 congressional and state senate redistricting maps void, finding they were drawn with “an unconstitutional partisan intent.” “Opinion by Chief Judge DiFiore. Judges Garcia, Singas and Cannataro concur. Judge Troutman dissents in part in an opinion, in which Judge Wilson concurs in part in a dissenting opinion, in which […]

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THERE WAS NO OBJECTIVE SUPPORT FOR PLAINTIFF BUS PASSENGER’S CLAIM THE MOVEMENT OF THE BUS WHICH CAUSED HER TO FALL WAS “UNUSUAL AND VIOLENT” (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant bus company’s, MTA’s, motion to dismiss the complaint in this bus-passenger injury case should have been granted: To establish a prima facie case of negligence against a common carrier for injuries sustained by a passenger as a result of the movement of the vehicle, a plaintiff […]

THE COMPOSITE LIEN ENCOMPASSING SEVERAL PARCELS OF PROPERTY WAS NOT INVALID ON ITS FACE BECAUSE IT WAS NOT SHOWN INDIVIDUAL PROPERTY OWNERS HIRED THE RESPONDENT IN SEPARATE TRANSACTIONS; THE LIEN SHOULD NOT HAVE BEEN SUMMARILY DISCHARGED ON THE GROUND THE AMOUNT WAS WILFULLY EXAGGERATED, A FINDING WHICH CAN ONLY BE MADE IN A FORECLOSURE PROCEEDING (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the composite lien encompassing several parcels of real property was not invalid on its face and had not bee declared void for wilful exaggeration. Therefore the validity of the lien must be determined in a foreclosure proceeding: … [T]he composite mechanic’s lien was facially valid and the Supreme […]

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