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Entries by Bruce Freeman

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DEFENDANT COMMODITY FUTURES BROKER IS ENTITLED TO COVERAGE UNDER FIDELITY BONDS FOR LOSSES INCURRED BY THE CRIMINAL ACTIONS OF A BROKER AMOUNTING TO $141 MILLION (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, in a full-fledged opinion by Justice Kapnick, determined defendant MF Global was entitled to coverage under fidelity bonds for losses incurred by the criminal actions of a broker, Dooley, for which Dooley was ordered to pay restitution to MF Global in the amount of $141 million: This 2009 […]

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ALTHOUGH THE PERSON WHO ALLEGEDLY ASSAULTED PLAINTIFF AT JFK AIRPORT WAS AN EMPLOYEE OF AMERICAN AIRLINES, HE WAS NOT ON DUTY AT THE TIME OF THE INCIDENT; THE DEFENDANTS MOTION FOR SUMMARY JUDGMENT ON THE VICARIOUS LIABILITY AND NEGLIGENCE CAUSES OF ACTION SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this vicarious liability, negligent hiring and supervision and premises liability action should have been granted. Plaintiff was allegedly assaulted by Miles, who worked for American Airlines, at JFK airport (owned by defendant Port Authority). Plaintiff sued under respondeat superior and negligence theories. […]

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CONFLICTING EVIDENCE ABOUT THE ABILITY TO SEE ICE ON THE PARKING LOT RAISED A TRIABLE QUESTION OF FACT WHETHER DEFENDANTS HAD CONSTRUCTIVE NOTICE OF THE CONDITION WHICH ALLEGEDLY CAUSED PLAINTIFF’S SLIP AND FALL (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, determined defendants in this ice slip and fall case did not eliminate questions of fact about whether they had constructive notice of the icy condition: Supreme Court found that plaintiffs’ testimony, submitted by defendants, showed that the allegedly dangerous condition “was neither visible nor had it existed for […]

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DEFENDANT’S WAIVER OF APPEAL WAS NOT VALID; THE COURT’S TERSE INQUIRY ABOUT THE APPEAL WAIVER WAS NOT CURED BY DEFENDANT’S EXECUTION OF A MORE DETAILED WRITTEN WAIVER AFTER SHE WAS SENTENCED AND MORE THAN A YEAR AFTER THE PLEA (THIRD DEPT).

The Third Department affirmed defendant’s conviction but noted that the waiver of appeal was not valid: The record reflects that County Court failed to explain the separate and distinct nature of the appeal waiver to defendant, and the court’s terse inquiry, wherein defendant was asked, “Do you understand that as part of this disposition, you’re […]

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THE CRIMINAL PROCEDURE LAW SPELLS OUT THE ONLY GROUNDS FOR APPEAL IN A CRIMINAL PROCEEDING; NO APPEAL LIES FROM THE DENIAL OF A MOTION TO CORRECT, AMEND OR SETTLE THE SENTENCING TRANSCRIPT; AND NO APPEAL LIES FROM ADDING A MANDATORY SURCHARGE, WHICH IS NOT PART OF A SENTENCE (THIRD DEPT).

The Third Department determined no appeal lies from an order denying defendant’s motion to correct, amend or settle the sentencing transcript or from an order adding the mandatory surcharge: As a general rule, “no appeal lies from a determination made in a criminal proceeding unless one is provided by the CPL, [which] exclusively provides for […]

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THE MAJORITY HELD THE APPELLATE DIVISION PROPERLY REFUSED TO HEAR APPELLANT FATHER’S APPEAL IN THIS TERMINATION OF PARENTAL RIGHTS PROCEEDING BECAUSE FATHER WAS IN DEFAULT (NO APPEAL LIES FROM A DEFAULT); THE DISSENT ARGUED FATHER WAS NOT IN DEFAULT BECAUSE HE APPEARED BY COUNSEL (CT APP).

The Court of Appeals, affirming the Appellate Division, over a strong dissent, determined the Appellate Division properly concluded it could not hear the appellant father’s appeal in this termination-of-parental-rights proceeding because he was in default (no appeal lies from a default judgment). The dissent argued father appeared by counsel and therefore was not in default: […]

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ALTHOUGH DEFENDANT’S ATTORNEY WAS SUSPENDED BY THE SECOND CIRCUIT BEFORE DEFENDANT’S TRIAL AND SUSPENDED IN NEW YORK JUST AFTER DEFENDANT’S TRIAL, DEFENDANT’S DEPRIVATION-OF-HIS-RIGHT-TO-COUNSEL AND INEFFECTIVE-ASSISTANCE ARGUMENTS WERE REJECTED; THE ATTORNEY WAS NOT OBLIGATED TO INFORM DEFENDANT OF HIS SUSPENSION OR THE PENDING SUSPENSION PROCEEDINGS (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Troutmam, affirmed defendant’s conviction. The court noted: (1) defendant’s attorney had been suspended by the Second Circuit before defendant’s trial; (2) defendant’s attorney was still licensed in New York at the time of the defendant’s trial and conviction; (3) defendant’s attorney was suspended in New […]

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THE “SOLE REMEDY REPURCHASE PROTOCOL” IN THIS RESIDENTIAL MORTGAGE-BACKED SECURITIES CASE REQUIRES NOTICE OF EACH INDIVIDUAL DEFECTIVE LOAN BEFORE THE DEFENDANT IS REQUIRED TO REPURCHASE IT; OF THE 783 NONCONFORMING LOANS, 480 WERE NOT SPECIFICALLY IDENTIFIED; THE DEFENDANT WAS NOT OBLIGATED TO REPURCHASE THE UNIDENTIFIED LOANS (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, reversing the Appellate Division, over an extensive partial dissent, determined that the “sole remedy repurchase protocol” contract provision of the residential-mortgage-backed-securities agreements requires notice of each defective loan before the obligation to repurchase is triggered: Pursuant to the pooling and service agreement (PSA) establishing […]

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A COMPUTER PRINTOUT FROM THE NYS DEPARTMENT OF STATE WEBSITE PURPORTING TO SHOW THE LOCATION OF DEFENDANT’S PRINCIPAL PLACE OF BUSINESS FOR VENUE PURPOSES WAS NOT ADMISSIBLE AS A BUSINESS RECORD (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s submission of a computer printout from the NYS Department of State website was insufficient to prove defendant’s principal place of business was in Kings County. Defendant had submitted its certificate of incorporation designating Richmond County as its principal place of business. Therefore plaintiff did not demonstrate the […]

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ALTHOUGH THE INFANT PLAINTIFF COULD NOT IDENTIFY THE CAUSE OF HER SLIP AND FALL; MOTHER, FATHER AND THE DEFENDANTS PROVIDED CIRCUMSTANTIAL EVIDENCE THAT THE FALL WAS CAUSED BY AN IDENTIFIED DEFECT IN THE SIDEWALK, RAISING A QUESTION OF FACT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that fact that the infant plaintiff, who was four at the time of her slip and fall, could not identify the cause of her fall did not require summary judgment in defendant’s favor. The cause of the fall may be established  by circumstantial evidence: “In a trip-and-fall case, […]

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