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Entries by Bruce Freeman

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ALTHOUGH PLAINTIFF WAS STRUCK IN THE ON-COMING LANE WHILE ATTEMPTING A LEFT TURN IN AN INTERSECTION, THERE WERE QUESTIONS OF FACT WHETHER DEFENDANT SHOULD HAVE SEEN THE PLAINTIFF (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant’s motion for summary judgment in this intersection traffic accident case should not have been granted. Although plaintiff was making a left turn when he was struck by defendant in the on-coming lane, there was a question of fact whether defendant should have seen plaintiff. Plaintiff was […]

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A CONTRACTOR WHICH CREATES A DANGEROUS CONDITION ON A PUBLIC SIDEWALK MAY BE LIABLE FOR A SLIP AND FALL BY A MEMBER OF THE PUBLIC (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant sidewalk-repair contractor’s motion for summary judgment in this slip and fall case should not have been granted. There was a question of fact whether the contractor who repaired the sidewalk created the hole which caused plaintiff to trip. A contractor may be liable for an affirmative […]

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DEFENDANTS DID NOT DEMONSTRATE THEY DID NOT HAVE CONSTRUCTIVE NOTICE OF THE CONDITION OF THE STAIRS ALLEGED TO HAVE CAUSED PLAINTIFF’S SLIP AND FALL BECAUSE THEY OFFERED NO PROOF OF WHEN THE STAIRS WERE LAST INSPECTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this stairway slip and fall case should not have been granted. To warrant summary judgment on the issue of constructive notice, defendants must show when the stairway was last inspected, which they failed to do: The defendants … failed to show … […]

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THE BANK’S AFFIDAVIT IN THIS FORECLOSURE ACTION DID NOT LAY A SUFFICIENT FOUNDATION FOR THE ADMISSIBILITY OF BUSINESS RECORDS, INCLUDING PROOF OF COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 1304 (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the bank’s proof of compliance with the notice requirements of RPAPL 1304 was deficient because the foundation for the admission of business records was not laid: … [T]he plaintiff submitted … an affidavit of an employee of its current mortgage loan servicer, along with copies of the […]

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THE BANK IN THIS FORECLOSURE ACTION DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 1304; I.E., THE NOTICE MUST BE MAILED IN A SEPARATE ENVELOPE WITH NO OTHER MATERIALS, AND THE NOTICE MUST BE SENT SEPARATELY TO EACH BORROWER (SECOND DEPT).

The Second Department, reversing Supreme Court in this foreclosure action, determined plaintiff did not comply with the RPAPL 1304 requirements that the 90-day notice of foreclosure be mailed in a separate envelope and that the notice be sent separately to both borrowers: … [T]he plaintiff failed to establish … that it strictly complied with RPAPL […]

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TO CHALLENGE THE BANK’S STANDING TO FORECLOSE THE DEFENDANT MUST ASSERT THE LACK OF STANDING AS AN AFFIRMATIVE DEFENSE; MERELY DENYING THE RELEVANT ALLEGATIONS IN THE COMPLAINT IS NOT ENOUGH (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined that the bank in this foreclosure action was not required to affirmatively demonstrate standing, the defendant, to raise the issue, must assert lack of standing as an affirmative defense, and merely denying the relevant allegations in the complaint is not enough: … [T]he plaintiff was not required […]

EVEN CRIMINAL SLURS ARE NOT ACTIONABLE AS DEFAMATION IF THEY ARE PURE OPINION; HERE DEFENDANT’S TWEET ACCUSING PLAINTIFF OF MAKING “THREATS” WAS NOT ACTIONABLE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined even communications which could be considered “criminal slurs” are not actionable as defamation if they are “pure opinion.” The defendant was a member of the NYC council representing Queens. When defendant opposed the construction of an Amazon corporate headquarters in Queens, plaintiff, a local restaurant owner, in text […]

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AT THE TIME DEFENDANT COMMITTED THE OFFENSE IN 2007, IT WAS NOT A REGISTRABLE OFFENSE UNDER THE SEX OFFENDER REGISTRATION ACT; THEREFORE DEFENDANT’S MOTION TO SEAL THE RECORD SHOULD NOT HAVE BEEN SUMMARILY DENIED; MATTER REMITTED FOR A HEARING (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the crime for which defendant was convicted, at the time of its commission in 2007, was not a registrable offense under the Sex Offender Registration Act (SORA). Therefore defendant’s motion to seal the record should not have been summarily denied. The matter was remitted for a hearing: … […]

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SEX OFFENDER CERTIFICATION IS NOT PART OF A SENTENCE AND THEREFORE IS NOT COVERED BY THE UNLAWFUL-SENTENCE EXCEPTION TO THE PRESERVATION REQUIREMENT; THEREFORE THE UNPRESERVED ISSUE COULD NOT BE CONSIDERED BY THE COURT OF APPEALS; HOWEVER, UPON REMITTAL, THE ISSUE CAN BE (AND WAS) CONSIDERED AT THE APPELLATE DIVISION LEVEL IN THE INTEREST OF JUSTICE (SECOND DEPT).

The Second Department, upon remittal from the Court of Appeals, adhered to its prior decision finding defendant’s certification as a sex offender unlawful. The Court of Appeals ruled that sex-offender certification is not part of a sentence and therefore is not covered by an exception to the preservation requirement. But, because the Appellate Division, unlike […]

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WHETHER DEFENDANT’S CONNECTICUT CONVICTION CAN SERVE AS A PREDICATE FOR SECOND FELONY OFFENDER STATUS CANNOT BE DETERMINED WITHOUT THE CONNECTICUT ACCUSATORY INSTRUMENT; THE UNPRESERVED ISSUE WAS CONSIDERED IN THE INTEREST OF JUSTICE; MATTER REMITTED FOR A HEARING (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, ruled a hearing was required to determine whether defendant’s Connecticut conviction could serve as a predicate offense for second felony offender status. The issue was not preserved and was considered in the interest of justice: Although the defendant did not preserve for appellate review the issue of whether […]

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