You are here: / Bruce Freeman

Entries by Bruce Freeman

,

THE RELATION-BACK DOCTRINE DID NOT APPLY TO SAVE THE AMENDED PETITION CHALLENGING A USE VARIANCE; THE INTITIAL PETITION FAILED TO NAME A NECESSARY PARTY WHO WAS KNOWN TO THE PETITIONERS AND WAS DISMISSED ON THAT GROUND; THE AMENDED PEITITION, WHICH NAMED THE NECESSARY PARTY, WAS DISMISSED AS TIME-BARRED; BECAUSE THE PETITIONERS HAD NO DOUBT ABOUT WHO THE NECESSARY PARTY WAS AND HAD NAMED HER IN A PRIOR PETITION, THE RELATION-BACK DOCTRINE COULD NOT BE INVOKED (THIRD DEPT).

The Third Department, over an extensive dissent, determined the relation-back doctrine did not save the petition challenging a use variance. The initial petition was dismissed for failure to name a necessary party, Rosa Kuehn. The subsequent amended petition, which included the necessary party, was dismissed as time-barred: Supreme Court correctly determined that petitioners are not […]

,

DEFENDANT’S UNTIMELY ANSWER WAS REJECTED BY PLAINTIFF BUT PLAINTIFF DEEMED THE ANSWER TO BE A NOTICE OF APPEARANCE; DEFENDANT DID NOT OBJECT; AN APPEARANCE IS THE EQUIVALENT OF SERVICE OF A SUMMONS; THEREFORE DEFENDANT WAIVED THE LACK-OF-PERSONAL-JURISDICTION DEFENSE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant waived any claim of a lack of personal jurisdiction. The plaintiff, rejecting defendant’s answer as untimely, indicated the answer was deemed to be a notice of appearance, which is the equivalent of personal service of the summons: An appearance of the defendant is equivalent to personal service […]

,

PLAINTIFFS WERE ENTITLED TO AMEND THE BILL OF PARTICULARS TO THE EXTENT THE AMENDMENT AMPLIFIED THE ALLEGATIONS ALREADY MADE WITHOUT OBJECTION IN THE SUPPLEMENTAL BILL OF PARTICULARS (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined plaintiffs were entitled to amplify the allegations in the supplemental bill of particulars in second and proposed third supplemental and amended bill of particulars: The plaintiffs were entitled to amend their bill of particulars once as of right at any time prior to the filing of the […]

PLAINTIFF, A FLORIDA RESIDENT, ALLEGEDLY WAS ABUSED BY A PRIEST IN FLORIDA IN 1983 AND 1984; PLAINTIFF SUED THE DIOCESE OF BROOKLYN BECAUSE THE PRIEST WHO ALLEGEDLY ABUSED HIM WAS TRANSFERRED FROM BROOKLYN TO FLORIDA, ALLEGEDLY BECAUSE OF SEXUAL MISCONDUCT WITH CHILDREN; THE CHILD VICTIMS ACT DOES NOT APPLY TO THE NONRESIDENT PLAINTIFF AND THE BORROWING STATUTE DOES APPLY; THEREFORE FLORIDA’S FOUR-YEAR STATUTE OF LIMITATIONS RENDERED PLAINTIFF’S ACTION TIME-BARRED (SECOND DEPT). ​

The Second Department, in a full-fledged opinion, in a matter of first impression, by Justice Christopher, determined the New York Child Victims Act, CPLR 214-g, is not available to nonresident plaintiffs where the alleged acts of abuse occurred outside New York. CPLR 214-g extends the statute of limitations to allow lawsuits by plaintiffs who were […]

, , ,

PLAINTIFF RAISED A QUESTION OF FACT WHETHER HE WAS INDUCED TO SIGN RELEASES BY FRAUD, DURESS AND/OR MUTUAL MISTAKE; PLAINTIFF WAS APPROACHED BY HIS EMPLOYER’S LAWYER AND ALLEGEDLY BELIEVED HE WOULD LOSE HIS JOB IF HE DIDN’T SIGN (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined plaintiff raised a question of fact about whether the releases were signed by plaintiff because of fraud, duress and/or mutual mistake. The facts are not described. Apparently plaintiff was injured at work and he alleged that he believed he would lose his job if he didn’t sign […]

ALTHOUGH PLAINTIFF FELL FROM THE SCAFFOLDING SYSTEM CONSTRUCTED BY SWING, A SUBCONTRATOR, PLAINTIFF’S LABOR LAW 240(1) AND 241(6) CAUSES OF ACTION AGAINST SWING SHOULD HAVE BEEN DISMISSED; SWING WAS NOT A CONTRACTOR OR OWNER, OR A CONTRACTOR’S OR OWNER’S STATUTORY AGENT, WITHIN THE MEANING OF THE STATUTES (FIRST DEPT).

The First Department, reversing Supreme Court, determined the Labor Law 240(1) and 241(6) causes of action against Swing, the company which constructed  the scaffolding, should have been dismissed. Plaintiff fell when, instead of using the scaffold walkway system, he attempted to descend from some scaffolding pipes to the wooden walkway and a wooden plank broke: […]

PLAINTIFF FELL OFF THE EDGE OF A BATHTUB WHEN HE WAS ATTEMPTING TO INSTALL A SHOWER-CURTAIN ROD; THE EDGE OF THE TUB WAS THE EQUIVALENT OF A SCAFFOLD AND PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE OF ACTION; TWO-JUSTICE DISSENT (FIRST DEPT). ​

The First Department, over a two-justice dissent, determined plaintiff was entitled to summary judgment on his Labor Law 240(1) cause of action. Plaintiff alleged he needed to stand on the rim of a bathtub to install a shower-curtain rod. He hit his head and fell when attempting to step up on the rim of the […]

,

THE FRAUD CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED BECAUSE IT WAS NOT DUPLICATIVE OF THE BREACH OF CONTRACT CAUSE OF ACTION; CRITERIA EXPLAINED (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined the fraud cause of action was not duplicative of the breach of contract cause of action and therefore should not have been dismissed: The fraud claim is not duplicative of the contract claim … , this is not a case where “the only fraud alleged” was the […]

,

DEFENDANT SHOULD NOT HAVE BEEN SENTENCED AS A SECOND FELONY OFFENDER BASED UPON A PRIOR FEDERAL DRUG CONSPIRACY CONVICTION; THE ISSUE FALLS WITHIN A NARROW EXCEPTION TO THE PRESERVATION REQUIREMENT (FOURTH DEPT).

The Fourth Department determined defendant should not have been sentenced as a second felony offender based upon a prior federal drug conspiracy conviction: … [T]his case “falls within the narrow exception to [the] preservation rule permitting appellate review when a sentence’s illegality is readily discernible from the . . . record” … . Here, the […]

,

ALTHOUGH BAIL-SETTING IS NOT APPEALABLE, WHETHER THE BAIL-SETTING COURT COMPLIED WITH THE CONSTITUTIONAL OR STATUTORY STANDARDS INHIBITING EXCESSIVE BAIL IS A PROPER SUBJECT FOR A HABEAS CORPUS PETITION; HERE THE BAIL-SETTNG COURT DID NOT COMPLY WITH CPL 510.30; MATTER REMITTED (FOURTH DEPT).

The Fourth Department, remitting the matter, determined that, although bail-setting is not appealable, the habeas corpus petition was the proper vehicle for a review of whether the constitutional or statutory standards inhibiting excessive bail were met. Here it was alleged the bail-setting court did not comply with CPL 510.30 by explaining its finding that remand […]

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy