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Entries by Bruce Freeman

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PLAINTIFF WAS ACQUITTED OF CHARGES STEMMING FROM THE ALLEGED APPROPRIATION OF INSURANCE PROCEEDS DUE OTHER BENEFICIARIES AND THEN SUED TWO INSURANCE COMPANIES; THE CAUSES OF ACTION FOR BREACH OF CONTRACT, CONVERSION AND BREACH OF FIDUCIARY DUTY DID NOT ACCRUE UPON ACQUITTAL AND WERE THERFORE TIME-BARRED (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined the causes of action that did not require plaintiff’s innocence in a criminal matter were time barred. Plaintiff was acquitted of charges stemming from the allegation she appropriated life insurance proceeds which were due to other beneficiaries. Plaintiff then sued two insurance companies alleging breach of contract, […]

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A ZONING BOARD OF APPEALS IS WITHOUT JURISDICTION ABSENT AN APPEAL FROM AN ORDER OR OTHER DETERMINATION BY AN ADMINISTRATIVE OFFICIAL CHARGED WITH ENFORCING THE ZONING CODE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, noted that a Zoning Board of Appeals has no jurisdiction unless there is an appeal from an order or decision or determination made by an administrative official charged with enforcement of zoning ordinances: Pursuant to the Code of the Town of Webster, absent an “order, requirement, decision or determination […]

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THE SORA COURT SHOULD HAVE CONSIDERED THAT THE DEFENDANT DID NOT REOFFEND DURING AN EXTENDED TIME WHEN HE WAS NOT SUPERVISED AS A MITIGATING FACTOR WHICH MAY WARRANT A DOWNWARD DEPARTURE IN THIS SORA RISK-LEVEL PROCEEDING (FOURTH DEPT).

The Fourth Department, reversing (modifying) County Court, determined County Court should have considered whether a downward department from the risk-level guidelines was warranted. Defendant, through and oversight, with respect to a previous conviction, was not registered as a sex offender and did not reoffend despite the absence of supervision: … [T]he fact that defendant was […]

RESCISSION IS NOT APPROPRIATE WHERE THE PARTIES CANNOT BE RETURNED TO THE STATUS QUO; A BREACH OF CONTRACT CAUSE OF ACTION MUST BE DISMISSED IF DAMAGES ARE NOT ESTABLISHED (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined defendant’s motion for summary judgment on the counterclaims for rescission and breach of contract should not have been granted. Rescission is only appropriate when the parties to a contract can be returned to the status quo, not the case here. And a breach of contract action must […]

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THE SUBROGATION ACTION BY THE INSURER OF THE PROPERTY OWNER IN THIS SLIP AND FALL CASE WAS NOT PRECLUDED BY THE RES JUDICATA DOCTRINE AFTER A GLOBAL SETTLEMENT WITH THE INJURED PARTY (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the subrogation action by plaintiff-insurer of the property owner, 60 LBC, in this slip and fall case was not precluded by the res judicata doctrine: The court determined that plaintiff is barred by res judicata from pursuing 60 LBC’s [the property owner’s] coverage claim against defendant [the insurer […]

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DEFENDANT-ATTORNEY DEMONSTRATED THE RETAINER AGREEMENT IN THE DRUNK-DRIVING AND VEHICULAR HOMICIDE CASE WAS NOT PROCEDURALLY UNCONSCIONABLE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant-attorney’s motion for summary judgment on the “unconscionable retainer agreement” cause of action should have been granted: … [D]efendant met his initial burden on the motion by establishing that the retainer agreement is not procedurally unconscionable. Plaintiff’s deposition testimony, which defendant submitted in support of the motion, demonstrated […]

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ALTHOUGH THE JUDGE IN THIS BENCH TRIAL DID NOT EXPLICITLY RULE ON DEFENDANT’S MOTION FOR A TRIAL ORDER OF DISMISSAL, THE MAJORITY DETERMINED THE DENIAL OF THE MOTION WAS IMPLICIT IN THE VERDICT AND THEREFORE THE LEGAL INSUFFICIENCY ARGUMENT COULD BE CONSIDERED ON APPEAL; THE DISSENT DISAGREED (FOURTH DEPT).

The Fourth Department, over a dissent, determined the judge in this bench trial implicitly ruled on defendant’s motion for a trial order of dismissal when rendering the verdict. The dissent argued an explicit ruling on the motion was a necessary prerequisite to an appeal: From the dissent: … [D]uring the nonjury trial, the court expressly […]

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THE INSURER PRESENTED EVIDENCE THE BOARD’S RULING THAT THE INSURER WAS THE RESPONSIBLE CARRIER WAS BASED UPON FRAUDULENT DOCUMENTATIOIN; IT WAS ABUSE OF DISCRETION TO DENY THE INSURER’S APPLICATION FOR REVIEW (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined the Board abused its discretion when denying an insurer’s (Everest’s) application for a review of a ruling that the insurer was the responsible carrier. That ruling was plausibly argued to have been based upon fraudulent documentation: … [T]he proof submitted by Everest in support of its […]

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AN APPELLATE COURT HAS THE POWER TO CONSIDER A REQUEST FOR A DECLARATORY JUDGMENT WHICH WAS NOT BEFORE THE MOTION COURT; THE REGULATION MANDATING CERTAIN VACCINES DOES NOT VIOLATE THE SEPARATION OF POWERS DOCTRINE OR EXCEED THE REGULATORY POWERS OF THE NYS DEPARTMENT OF HEALTH (FOURTH DEPT).

The Fourth Department, in a full-fledged, comprehensive opinion by justice NeMoyer which cannot be fairly summarized here, held the appellate court had the power to determine a request for a declaratory judgment which was not raised in the motion court, and the regulation mandating certain vaccines, 10 NYCRR 66-1.1(1) , does not violate the separation […]

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FAMILY COURT SHOULD NOT HAVE DELEGATED ITS AUTHORITY TO SET UP A VISITATION SCHEDULE TO THE CHILD AND MOTHER (THIRD DEPT).

The Third Department, reversing (modifying) Family Court and remitting the matter for a visitation schedule, determined Family Court should not have delegated its authority by allowing the child and mother to agree to a visitation schedule: … Family Court improperly delegated its authority to the younger child when it ordered that the mother’s visitation would […]

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