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Entries by Bruce Freeman

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THE CONSENT-SEARCH PROBATION CONDITION WAS NOT WARRANTED IN THIS DWI CASE; THERE WAS A COMPREHENSIVE TWO-JUSTICE DISSENT (FIRST DEPT).

The First Department, reversing Supreme Court, over a comprehensive two-justice dissent, determined the probation condition requiring defendant to consent to a search of his person or home was not warranted in this DWI case. Defendant was found asleep in his car, engine running, with a bottle of alcohol on the seat. He had twice before […]

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THE FORECLOSURE ABUSE PREVENTION ACT (FAPA) REPRESENTS A CHANGE IN THE LAW WHICH WILL SUPPORT A MOTION TO RENEW; HERE THE MOTION TO RENEW SHOULD HAVE BEEN GRANTED AND THE FORECLOSURE ACTION SHOULD HAVE BEEN DISMISSED AS TIME-BARRED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant’s (G&Q Estates Corp.’s) motion to renew based upon new law, the Foreclosure Abuse Prevention Act (FAPA), should have been granted and the foreclosure action should have been dismissed as time-barred: A motion for leave to renew “shall be based upon new facts not offered on the […]

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CALCULATONS RELIED UPON BY THE REFEREE WERE BASED ON UNIDENTIFIED AND UNPRODUCED BUSINESS RECORDS RENDERING THE CALCULATIONS HEARSAY; THE REPORT SHOULD NOT HAVE BEEN CONFIRMED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the referee’s report relied on calculations based on unidentified and unproduced business records, rendering the calculations hearsay. Therefore, the reports should not have been confirmed: … [T]he referee’s findings with respect to the amount due to the plaintiff were based upon unidentified and unproduced business records … . […]

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ALTHOUGH DEFENDANT DEMONSTRATED THE POST ON LINKEDIN MET THE CRITERIA FOR THE “STRATEGIC LAWSUIT AGAINST PUBLIC PARTICIPATION” (SLAPP) DEFENSE TO THE DEFAMATION ACTION, PLAINTIFFS DEMONSTRATED THE DEFAMATION ACTION HAS A “SUBSTANTIAL BASIS IN LAW;” THEREFORE THE ACTION SURVIVED THE MOTION TO DISMISS PURSUANT TO CIVIL RIGHTS LAW 76-A (SECOND DEPT). ​

The Second Department determined plaintiffs had stated causes of action for defamation requiring the denial of defendant’s motion to dismiss the action as a strategic lawsuit against public participation (SLAPP, Civil Rights Law section 76-a). Plaintiffs alleged defendant put up a post on Linkedin in which defendant held himself out as a “Nonprofit Leader and […]

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HERE THE ARGUMENT THAT NECESSARY PARTIES HAD NOT BEEN JOINED SHOULD NOT HAVE BEEN REJECTED; THE PROPER REMEDY IS TO SUMMON THE NECESSARY PARTIES, NOT DISMISSAL (SECOND DEPT).

The Second Department, reversing Supreme Court, noted that the proper remedy for the failure to include a necessary party is to summon the missing party, not dismiss the action:​ The nonjoinder of necessary parties may be raised at any stage of the proceedings, by any party or by the court on its own motion, including […]

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STATEMENTS IN BOLD LETTERS ON THE BOTTOM OF EACH PAGE OF THE RPAPL 1304 NOTICE OF FORECLOSURE, AS WELL AS A CONSUMER NOTICE PURSUANT TO 15 USC SECTION 1692G, DID NOT VIOLATE THE “SEPARATE ENVELOPE” RULE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined statements included with the RPAPL 1304 90-day notice-of-foreclosure did not violate the “separate envelope” rule: “The ‘separate envelope’ mandate of RPAPL 1304(2) provides that ‘[t]he notices required by this section shall be sent by the lender, assignee or mortgage loan servicer in a separate envelope from any other […]

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THE VIOLATIONS OF EXECUTIVE LAW 63 (12) BASED ON FALSE “STATEMENTS OF FINANCIAL CONDITION” (SFC’S) SUBMITTED TO OBTAIN LOANS FOR TRUMP ENTITIES WERE AFFIRMED ON APPEAL; HOWEVER THE RELATED “DISGORGEMENT” OF NEARLY HALF-A-BILLION DOLLARS WAS DEEMED AN EXCESSIVE FINE AND WAS VACATED (FIRST DEPT).

The First Department, in three decisions issued by a divided court with no majority, determined the defendants violated Executive Law section 63 (12) by submitting deceptive business records to banks, insurance companies, and the NYC Parks Department. The suit alleged, for example, President Donald Trump submitted false “statements of financial condition” (SFC”s) to banks to […]

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ALTHOUGH THE RPAPL 1304 NOTICE OF FORECLOSURE COMPLIED WITH THE STATUTE WHEN IT WAS SENT, IT DID NOT COMPLY WITH THE VERSION OF THE STATUTE IN EFFECT WHEN THE ACTION WAS COMMENCED; PLAINTIFF’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN DENIED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that, although the RPAPL 1304 notice of foreclosure was sufficient at the time it was served, it did not meet the RPAPL 1304 notice requirements at the time the action was brought: RPAPL 1304(1) provides that “at least ninety days before a lender, an assignee or a mortgage […]

A NINETY-DAY NOTICE WHICH DOES NOT STATE THAT FAILURE TO COMPLY WILL RESULT IN DISMISSAL OF THE ACTION IS DEFECTIVE AND HAS NO EFFECT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the 90-day notice was defective because it did not state that failure to comply with the demand will result in dismissal of the action: “CPLR 3216 permits a court to dismiss a complaint for want of prosecution only after the court or the defendant has served the plaintiff […]

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THE DEFENDANT DID NOT HAVE STANDING TO MOVE TO SUPPRESS THE GUN FOUND UNDER HIS SEAT IN THE CAR; THE PEOPLE DID NOT RELY ON THE STATUTORY PRESUMPTION THAT THE OCCUPANTS OF A CAR POSSESS CONTRABAND IN THE CAR; RATHER THE PEOPLE RELIED ON THE TESTIMONY OF A POLICE OFFICER WHO SAW DEFENDANT PLACE AN OBJECT UNDER HIS SEAT; AFTER DEFENDANT GOT OUT OF THE CAR, THE BARREL OF THE GUN WAS IN PLAIN VIEW (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion to suppress a weapon seized from a car in which defendant was a passenger should not have been granted. Defendant, who had no possessory interest in the car, did not have standing to contest the search of the car. The People did not rely on the […]

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