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Entries by Bruce Freeman

IN THIS DISPUTE BETWEEN PLAINTIFF BEER DISTRIBUTORS AND DEFENDANT BEER COMPANY, THE SECOND DEPARTMENT HELD THAT ALCOHOLIC BEVERAGE CONTROL ACT SECTION 55-C(4), WHICH PROHIBITS TERMINATION OF A DISTRIBUTION AGREEMENT WITHOUT GOOD CAUSE AND AN OPPORTUNITY TO CURE, APPLIES TO BOTH WRITTEN AND ORAL CONTRACTS; THE COURT WENT ON TO FIND THAT THE COMPLAINT, WHICH WAS BASED ON AN ORAL DISTRIBUTION AGREEMENT, DID NOT STATE A CAUSE OF ACTION FOR BREACH OF SECTION 55-C(4) (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Hom, in a matter of first impression, determined the “Alcoholic Beverage Control Act § 55-c(4) [hereinafter “the Act”], which prohibits the termination of agreements between brewers and beer wholesalers without good cause and an opportunity to cure, applies to non-written agreements.” Plaintiffs are beer distributors. Plaintiffs’ […]

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PLAINITFF’S AGENTS WHO MAILED THE RPAPL 1304 NOTICE OF FORECLOSURE WERE NOT IDENTIFIED IN PLAINTIFF’S AFFIDAVIT OFFERED IN SUPPORT OF SUMMARY JUDGMENT IN THIS FORECLOSURE PROCEEDING; ALSO, THE AFFIDAVIT PROVIDED NO FOUNDATION FOR SUBMITTED DOCUMENTS FROM A THIRD-PARTY VENDOR; THEREFORE PLAINTIFF WAS NOT ENTITLED TO SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the affidavit submitted by the plaintiff in this foreclosure action to demonstrate the proper mailing of the RPAPL 1304 notice of foreclosure was deficient, requiring denial of plaintiff’s motion for summary judgment: … [P]laintiff submitted an affidavit of Connie Melendez, an employee of the plaintiff. … Melendez’s affidavit […]

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THE PETITION SEEKING REVIEW OF THE BOARD OF ELECTIONS’ DECISION TO PURCHASE NEW VOTING MACHINES WHICH OPERATE BY SCANNING A BAR CODE SHOULD NOT HAVE BEEN DISMISSED ON THE GROUND PETITIONER, COMMON CAUSE NEW YORK, DID NOT DEMONSTRATE AN INJURY-IN-FACT; COMMON CAUSE ARGUED THE USE OF A BAR CODE WHICH IS SCANNED BY THE MACHINE WILL IMPEDE VERIFICATION OF THE VOTING BALLOTS; THERE WAS A TWO-JUSTICE DISSENT (THIRD DEPT).

The Third Department, reversing Supreme Court, over a two-justice dissent, determined the petitioner, Common Cause New York, had standing to contest the State Board of Elections’ (the Board’s) approval of the use of a new voting machine on the ground the machine’s mechanism for counting votes (using a bar code) impeded the right to independently […]

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OVERRULING PRECEDENT, THE THIRD DEPARTMENT NOW ACCEPTS THE “CATALYST THEORY” WHICH, UNDER THE NYS EQUAL ACCESS TO JUSTICE ACT (EAJA), ALLOWS THE RECOVERY OF ATTORNEY’S FEES BY A PARTY WHO INSTIGATES LITIGATION AGAINST THE STATE AND THE STATE VOLUNTARILY GRANTS THE SOUGHT RELIEF WITHOUT FUTHER LITIGATION; THE “CATALYST THEORY” APPLIES ONLY WHERE THE PARTY “PREVAILS IN WHOLE,” NOT WHERE THE PARTY HAS ONLY “SUBSTANTIALLY PREVAILED” (THIRD DEPT).

The Third Department, reversing Supreme Court and overruling precedent, in a full-fledged opinion by Justice Aarons, determined petitioner was not precluded from an award of counsel fees because the agency petitioner sued, the Office of Temporary and Disability Housing (OTDA), voluntarily granted the relief petitioner sought without the need for further litigation. In so doing, […]

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THE MAJORITY, LAYING OUT ITS FACTUAL FINDINGS IN GREAT DETAIL, AFFIRMED FAMILY COURT’S MODIFICATION OF CUSTODY RULING ALLOWING MOTHER TO RELOCATE WITH THE CHILD; THE TWO-JUSTICE DISSENT ARGUED THE MAJORITY IGNORED SUBSTANTIAL EVIDENCE WHICH CONFLICTED WITH AND CONTRADICTIED ITS RULINGS, LAYING OUT THAT EVIDENCE IN GREAT DETAIL; ESSENTIALLY THE DISSENT ARGUED THAT THE CONFLICTING AND CONTRADICTORY EVIDENCE IGNORED BY THE MAJORITY DEMONSTRATES MOTHER DID NOT MEET HER BURDEN TO DEMONSTRATE RELOCATION WAS IN THE “BEST INTEREST OF THE CHILD” (FIRST DEPT).

The First Department, over a comprehensive two-justice dissent, affirmed Family Court’s modification of custody ruling allowing mother to relocate to Florida with the child. The dissenters argued the majority ignored evidence which conflicted with its findings, effectively finding relocation was in mother’s best interest, not the child’s. The dissent laid out, in detail, the evidence […]

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THERE WAS NO EVIDENCE MOTHER WAS SERVED WITH THE ORDER OF PROTECTION PROHIBITING THE FATHER’S CONTACT WITH HER AND THE CHILDREN; THE PROOF IN THIS CHILD NEGLECT PROCEEDING AGAINST MOTHER DID NOT MATCH THE ALLEGATIONS IN THE PETITION; THE JUDGE EFFECTIVELY AMENDED THE PETITION BY IMPROPERLY CONFORMING THE PETITION TO SERIOUSLY CONFLICTING AND CONTRADICTORY PROOF; MOTHER WAS NEVER GIVEN THE OPPORTUNITY ADDRESS THE “AMENDED” PETITION; NEGLECT FINDING VACATED (FIRST DEPT).

The First Department, vacating the neglect finding against mother, in a full-fledged opinion by Justice Rosada, determined there was insufficient support in the record for the judge’s resolution of conflicting evidence, which amounted to an amendment of the petition to conform to the proof. Mother was never given the opportunity to address the judge’s sua […]

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HERE IN THIS MED MAL ACTION, THE COVID-RELATED IMMUNITY CODIFIED IN THE EMERGENCY OR DISASTER TREATMENT PROTECTION ACT (EDTPA) WARRANTED SUMMARY JUDGMENT DISMISSING THE CAUSES OF ACTION STEMMING FROM THE TREATMENT OF PLAINTIFF BY DEFENDANT PHYSICIAN IN APRIL 2020, BUT NOT THE CAUSE OF ACTION STEMMING FROM THE TREATMENT OF PLAINTIFF BY DEFENDANT PHYSICIAN IN MARCH 2020, BEFORE HIS OFFICE WAS CLOSED PURSUANT TO THE COVID EMERGENCY DECLARATION (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined (1) the repeal of the Emergency or Disaster Treatment Protection Act (EDTPA) does not apply retroactively, and (2), the EDTPA did not provide COVID-related immunity for defendants’ treatment of plaintiff in March, 2020, but did provide immunity for defendants’ treatment of plaintiff in April, 2020: On March […]

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FATHER, WHO LIVED IN FLORIDA, BROUGHT THIS PARENTAL ACCESS PETITION; FATHER INDICATED HE COULD NOT AFFORD TO TRAVEL TO NEW YORK; HE APPEARED SEVERAL TIMES VIRTUALLY; HE DID NOT APPEAR AT THE LAST COURT DATE, BUT HIS ATTORNEY WAS PRESENT; THE JUDGE SHOULD NOT HAVE DISMISSED THE PETITION AS ABANDONED (SECOND DEPT).

The Second Department, reversing Family Court, determined that the dismissal of father’s parental access petition for failure to prosecute was not warranted. Father lived in Florida, had made appearances virtually, and, although he did not appear at the last court date, his attorney was present: … [F]ather commenced this proceeding pursuant to Family Court Act […]

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STRICT COMPLIANCE WITH THE NOTICE OF FORECLOSURE PROVISIONS IN RPAPL 1304 IS REQUIRED; HERE THE BANK FAILED TO SHOW THAT IT SENT RPAPL 1304 NOTICES ADDRESSED INDIVIDUALLY TO DEFENDANTS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank’s failure to comply with the notice of foreclosure requirements of RPAPL 1304 precluded summary judgment: RPAPL 1304(1) provides that “at least ninety days before a lender, an assignee or a mortgage loan servicer commences legal action against the borrower, . . . including mortgage foreclosure, such […]

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PLAINTIFF SLIPPED AND FELL ON SNOW FIVE HOURS AFTER THE “EXTRAORDINARY SNOWSTORM” HAD ENDED; THE STORM-IN-PROGRESS RULE APPLIED AND DEFENDANT TRANSIT AUTHORITY WAS ENTITLED TO SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant transit authority’s motion for summary judgment in this slip and fall case should have been granted pursuant to the “storm in progress” rule. :Plaintiff slipped an fell on an uncovered staircase at a subway station. The fall happened five hours after the end of “an extraordinary […]

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