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Entries by Bruce Freeman

PETITION TO REMOVE A TRUSTEE SHOULD HAVE BEEN GRANTED, CRITERIA EXPLAINED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the petition by one of decedent’s daughter, Eckhouse, to remove the other daughter, Taormina, as trustee of the generation skipping transfer (GST) trusts should have been granted. The decision includes a comprehensive discussion of the criteria for removing a trustee: … [T]he record clearly demonstrates that, in contrast […]

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NO APPEAL LIES FROM DICTA (SECOND DEPT).

The Second Department noted that no appeal lies from dicta. Here the plaintiff acknowledged her slip and fall complaint was properly dismissed against two defendants, but attempted to appeal the motion court’s statement that “the plaintiff is unable to establish where she fell:” The plaintiff commenced this action to recover damages for personal injuries she […]

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THE PROCESS SERVER IN THIS FORECLOSURE ACTION WAS TOLD BY DEFENDANT’S DAUGHTER THAT HE HAD THE RIGHT ADDRESS; BUT, IN FACT, DEFENDANT DID NOT RESIDE AT THAT ADDRESS; SERVICE WAS INVALID (SECOND DEPT).

The Second Department, reversing Supreme Court, in a full-fledged opinion by Justice Dillon, in a matter of first impression, determined the service of process in this foreclosure action was invalid. A relative of a defendant (daughter) told the process service that the address where service was made was proper, but, in fact, the defendant did […]

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QUESTION OF FACT WHETHER THE CONTINUOUS TREATMENT DOCTRINE RENDERED THIS DENTAL MALPRACTICE ACTION TIMELY; PLAINTIFF STATED A CAUSE OF ACTION FOR BREACH OF CONTRACT BASED ON THE PROMISED OUTCOME OF THE DENTAL WORK (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined: (1) there was a question of fact whether the continuous treatment doctrine applied making this dental malpractice action timely; and (2) plaintiff’s breach of contract action against defendant dentist (Irlin) should not have been dismissed: … [T]he plaintiff submitted an affirmation of her current treating dentist, who […]

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IN THIS SEXUAL ABUSE CASE, THE CHILD’S MENTAL HEALTH RECORDS SHOULD BE REVIEWED BY THE JUDGE IN CAMERA TO DETERMINE WHETHER ANY RECORDS ARE RELEVANT TO THE RESPONDENT’S CLAIM THE CHILD FABRICATED THE SEXUAL ABUSE ALLEGATIONS; FAMILY COURT PROPERLY DENIED RESPONDENT’S REQUEST FOR DISCOVERY OF THE RECORDS (FIRST DEPT). ​

The First Department, reversing (modifying) Family Court, held the judge properly denied discovery of the child’s mental health records in this sexual abuse proceeding, but the judge should review the records in camera to determine if any records support respondent’s position that the child fabricated the sexual abuse allegations: Confidential mental health records may only […]

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THE WRENCH WHICH FELL AND STRUCK PLAINTIFF COULD HAVE BEEN TETHERED TO THE WORKER WHO DROPPED IT; PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE OF ACTION; PLAINTIFF NEED NOT SUBMIT AN EXPERT AFFIDAVIT (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment on the Labor Law 240(1) cause of action should have been granted. A wrench slipped out of a co-worker’s hand and fell 10 or 15 feet striking plaintiff. Defendant’s expert opinion that the wrench could not be tethered to a wall missed the […]

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THE STATE DID NOT DEMONSTRATE DEFENDANT WAS UNABLE TO CONTROL SEXUAL URGES, AS OPPOSED HAVING DIFFICULTY CONTROLLING SEXUAL URGES; THEREFORE CONFINEMENT IS NOT AN APPROPRIATE REMEDY (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined petitioner did not demonstrate defendant was unable to control his sexual urges, as opposed to having difficulty controlling them. Therefore confinement of the defendant was not an appropriate remedy: … [A] ” ‘[d]angerous sex offender requiring confinement’ ” is a sex offender “suffering from a mental abnormality involving […]

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THE IMPOSITION OF A FINE WAS NOT PART OF THE PLEA AGREEMENT; ALTHOUGH THE ISSUE WAS NOT PRESERVED, THE FINE WAS VACATED IN THE INTEREST OF JUSTICE (FOURTH DEPT).

The Fourth Department, reversing (modifying) County Court, determined the imposition of a fine was not part of the plea agreement and vacated that part of the sentence: Defendant’s … contention that his guilty plea was not knowingly, intelligently, and voluntarily entered is actually a contention that County Court erred in imposing a $1,000 fine that […]

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DEFENDANT, WHO WAS CONVICTED OF STATUTORY RAPE (NO FORCE) WHEN HE WAS 18 IN 1996, SHOULD HAVE BEEN CLASSIFIED A LEVEL ONE, NOT LEVEL TWO, RISK (FOURTH DEPT).

The Fourth Department, reversing (modifying) County Court, determined defendant, who was convicted of statutory rape (no force) in 1996, should have classified as a level one risk, not level two: Defendant appeals from an order classifying him as a level two sex offender stemming from his 1996 conviction in Virginia for the statutory rape of […]

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THE JUDGE ADOPTED A DECISION DRAFTED BY COUNSEL AS THE FINAL DETERMINATION OF THE CASE AND THEREBY VITIATED THE PURPOSE SERVED BY JUDICIAL OPINIONS; THE FOURTH DEPARTMENT VACATED THE JUDGMENT (FOURTH DEPT).

The Fourth Department, vacating the judgment, determined the judge erred by adopting a proposed decision drafted by counsel as the final determination of the case: … [T]he court erred in adopting, almost verbatim, the proposed decision drafted by petitioners’ counsel as the final determination in this case … . “When a court adopts a party’s […]

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