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Entries by Bruce Freeman

THE NEW YORK STATE AND LOCAL RETIRMENT SYSTEM DID NOT REBUT THE “WORLD TRADE CENTER PRESUMPTION” THAT PETITIONER’S DEPRESSION WAS AGGRAVATED BY HIS EXPERIENCES ON 9-11; PETITIONER POLICE OFFICER WAS THEREFORE ENTITLED TO ACCIDENTAL DISABILITY RETIREMENT BENEFITS (THIRD DEPT).

The Third Department, reversing the Comptroller, determined that the respondent New York State and Local Retirement System did not rebut the “World Trade Center presumption” that petitioner’s depression was aggravated by his experiences on 9-11: Recognizing that there is no objective laboratory test to diagnose a mental health disorder like depression, if Fayer [respondent’s expert] […]

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DEFENDANT EMPLOYEE DID NOT HAVE HIS EMPLOYER’S PERMISSION TO DRIVE THE TRUCK INVOLVED IN THE ACCIDENT; THEREFORE THE EMPLOYER’S INSURER PROPERLY DISCLAIMED COVERAGE (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the driver, Nichols, did have the permission of his employer (Monro) to drive the truck involved in the accident. Therefore Monro’s insurer properly disclaimed coverage: Under Vehicle and Traffic Law § 388 (1), the negligence of the operator of a motor vehicle may be imputed to the owner […]

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FAMILY COURT SHOULD NOT HAVE DETERMINED, WITHOUT A HEARING, THAT NEW YORK DID NOT HAVE JURISDICTION OVER THIS CUSTODY MATTER OR THAT NEW YORK WAS AN INCONVENIENT FORUM; MOTHER HAD RELOCATED TO HAWAII WITH THE CHILDREN (SECOND DEPT).

The Second Department, reversing Family Court, determined the court should not have summarily, without a hearing: (1) New York did not have jurisdiction over the custody proceeding; and (2) New York was in inconvenient forum. Mother had relocated to Hawaii with the children: The court made the initial custody determination for the children in conformity […]

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PETITIONER’S WAIVER OF HER RIGHT TO COUNSEL IN THIS FAMILY COURT ACT ARTICLE 8 PROCEEDING WAS NOT DEMONSTRATED TO HAVE BEEN VOLUNTARY; THE COURT SHOULD HAVE HELD A HEARING ON WHETHER THE RESPONDENT AND PETITIONER HAD BEEN IN AN INTIMATE RELATIONSHIP (THEREBY AFFORDING THE COURT SUBJECT MATTER JURISDICTION) (SECOND DEPT).

The Second Department, reversing Family Court in this Family Court Act article 8 proceeding, determined; (1) petitioner’s waiver of her right to counsel was invalid, and (2) the finding that petitioner did not have an intimate relationship with respondent, thereby depriving the court of subject matter jurisdiction, was not supported by the record: A party […]

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THE CLASS—LONG ISLAND POWER AUTHORITY (LIPA) CUSTOMERS AFFECTED BY POWER OUTAGES CAUSED BY HURRICANE SANDY—SHOULD NOT HAVE BEEN CERTIFIED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the class, Long Island Power Authority (LIPA) customers affected by Hurricane-Sandy power outages, should not have been certified: The plaintiffs base their claims against LIPA on an allegation that LIPA failed to fulfill its promise, made in 2006, that it would spend $25 million annually on a 20-year […]

BECAUSE THE FOIL REQUESTS REQUIRED THE RESPONDENT TO CREATE NEW DOCUMENTS, THE REQUESTS SHOULD HAVE BEEN DENIED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined FOIL requests for information about kosher meals provided by the NYC Department of Corrections (DOC) should have been denied because the requests would have required the creation of new documents: … “[A]s a general rule, an agency responding to a FOIL request is not required to create any […]

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THE INCLUSION OF OTHER MATERIAL IN THE ENVELOPE CONTAINING THE RPAPL 1304 NOTICE IN THIS FORECLOSURE ACTION IS A DEFENSE WHICH CAN BE RAISED AT ANY TIME AND WHICH WARRANTED SUMMARY JUDGMENT IN FAVOR OF THE DEFENDANTS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the plaintiff’s failure to comply with RPAPL 1304 is a defense to a foreclosure action which can be raised at any time. Here the inclusion of other material in the envelope containing the RPAPL 1304 warranted summary judgment in favor of defendants: Although the defendants failed to oppose […]

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WHEN SUBSTITUTING AN ALTERNATE JUROR AFTER DELIBERATIONS HAVE BEGUN, THE JURY MUST BE INSTRUCTED TO START THE DELIBERATIONS OVER AND DISREGARD THE PRIOR DELIBERATIONS; THE OVER $14 MILLION PLAINTIFF’S VERDICT IN THIS TRAFFIC ACCIDENT CASE SHOULD HAVE BEEN SET ASIDE (SECOND DEPT). ​

The Second Department, reversing the over $14 million judgment and ordering a new trial on damages, in a full-fledged opinion by Justice Barros, determined defendants’ motion to set aside the verdict in this traffic accident case should have been granted. An alternate juror was substituted after deliberations began. The jury should have been instructed to […]

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THE JUDGE SHOULD HAVE HELD A HEARING BEFORE GRANTING THE BANK’S MOTION FOR AN ALTERNATIVE METHOD OF SERVICE IN THIS FORECLOSURE ACTION; DEFENDANT AVERRED THE ADDRESS LISTED ON THE MORTGAGE WAS CORRECT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined a hearing should have been held before allowing the bank to use an alternate method of court authorized service on defendant. Defendant’s correct address was on the mortgage: … [T]he defendant’s submissions “raised a question of fact as to whether it was impracticable for the plaintiff to serve […]

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DEFENDANT’S MOTION TO MODIFY THE CUSTODY ARRANGEMENT RAISED DISPUTED FACTS; THE MOTION SHOULD NOT HAVE BEEN GRANTED WITHOUT A HEARING (SECOND DEPT).

The Second Department, reversing Supreme Court, determined disputed factual issues required a hearing on defendant’s motion to modify the custody arrangement: “In order to modify an existing custody arrangement, there must be a showing of a subsequent change of circumstances so that modification is required to protect the best interests of the child” … . […]

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