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Entries by Bruce Freeman

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THE MOTION FOR A JUDGMENT AS A MATTER OF LAW (CPLR 4401) FINDING THE NYC HOUSING AUTHORITY LIABLE FOR A BEDBUG INFESTATION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the motion for a judgment as a matter law (CPLR 4401), finding the NYC Housing Authority (NYCHA) liable for a bedbug infestation of plaintiffs’ apartments, should not have been granted: A motion pursuant to CPLR 4401 should not be granted unless, affording the party opposing the motion every […]

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ALTHOUGH THE BROKER MAY HAVE REQUESTED THAT PLAINTIFF BE ADDED TO THE INSURANCE POLICY, THE BROKER ALLEGEDLY DID NOT VERIFY THE COVERAGE WAS IN PLACE BEFORE ERRONEOUSLY REPRESENTING TO THE PLAINTIFF THAT IT WAS INSURED; THERE WAS A QUESTION OF FACT WHETHER THE BROKER BREACHED A COMMON-LAW OR CONTRACTUAL DUTY OWED TO PLAINTIFF (SECOND DEPT).

The Second Department determined there were triable issues of fact concerning whether defendant Ovation breached its common-law or contractual duty to procure insurance for plaintiff Concrete. Allegedly, Ovation had represented to Concrete that the insurance had been procured but did not verify that the coverage, to be provided by the insurer, was in place: In […]

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THE PEOPLE PROPERLY RELIED ON HEARSAY TO DEMONSTRATE PROBABLE CAUSE AT THE SUPPRESSION HEARING; THE DEFENDANT DID NOT PRESENT ANY EVIDENCE TO CALL THE RELIABILITY OF THE HEARSAY INTO QUESTION (FIRST DEPT).

The First Department explained the People’s burden of proof when relying on hearsay evidence at a suppression hearing. Here the transit officers who witnessed defendant commit “farebeating” (providing probable cause) were not called to testify. The hearsay was deemed admissible under Aguilar-Spinelli and the defendant did not call the accuracy or reliability of the hearsay […]

DEFENDANT WAS ENTITLED TO A HEARING TO DETERMINE WHETHER THE SECURITY GUARD WHO RECOVERED STOLEN PROPERTY FROM HIM WAS LICENSED TO EXERCISE POLICE POWERS OR WAS ACTING AS AN AGENT OF THE POLICE (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Renwick, determined defendant was entitled to a hearing on whether the store security guard who detained him was licensed to exercise police powers or was acting as an agent of the police. Although the defendant had already pled guilty and was sentenced, the information available to […]

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THE SENTENCE AGREED TO IN THE PLEA BARGAIN AND IMPOSED BY THE COURT WAS ILLEGAL BECAUSE IT WAS LESS THAN STATUTORILY REQUIRED; THE SENTENCE WAS VACATED AND THE MATTER REMITTED TO GIVE DEFENDANT THE OPPORTUNITY TO WITHDRAW THE PLEA (THIRD DEPT).

The Third Department determined defendant’s sentence was illegal because it was less than statutorily required. Because the plea agreement included the illegal sentence, the sentence was vacated and the matter was remitted to give the defendant the opportunity to withdraw his plea: Defendant had previously been convicted of driving while intoxicated in violation of Vehicle […]

CLAIMANT, WHO WAS NOT EMPLOYED AT THE TIME COVID-PANDEMIC-RELATED UNEMPLOYMENT BENEFITS BECAME AVAILABLE, WAS NOT ELIGIBLE TO RECEIVE THE COVID-PANDEMIC BENEFITS (THIRD DEPT).

The Third Department determined claimant was not entitled to COVID-pandemic-related unemployment insurance benefits because she was not employed at the time the benefits became available: Claimant was ineligible for regular unemployment insurance benefits given her failure to work during the relevant period and contended that she was unable and unavailable to work due to one […]

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THE REFEREE’S REPORT WAS BASED UPON INFORMATION IN BUSINESS RECORDS WHICH WERE NOT ATTACHED TO THE AFFIDAVIT IN WHICH THE RECORDS WERE DESCRIBED; THE INFORMATION IN THE AFFIDAVIT WAS THEREFORE INADMISSIBLE HEARSAY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the referee in this foreclosure action relied on information in business records which were not provided along with the affidavit describing them: The defendant argues … that the Supreme Court erred in confirming the referee’s report because the referee’s computation was premised upon unproduced business records. “The report […]

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IN THIS FORECLOSURE ACTION, DEFENDANT’S COUNTERCLAIMS FOR ABUSE OF PROCESS AND MALICIOUS PROSECUTION SHOULD HAVE BEEN DISMISSED (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court in this foreclosure action, determined defendant’s (Yeshiva’s) counterclaims for abuse of process and malicious prosecution should have been dismissed: Supreme Court should have granted those branches of Maspeth’s [the bank’s] motion which were to dismiss Yeshiva’s second and third counterclaims, sounding in abuse of process and malicious prosecution, […]

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THE HOMEOWNERS’ ASSOCIATION ACTED WITHIN ITS AUTHORITY WHEN IT REQUIRED A HOMEOWNER TO TAKE DOWN A FENCE; HOWEVER THE AUTHORITY FOR THE HEAVY FINE (OVER $35,000) WAS NOT VALID PURSUANT TO THE REAL PROPERTY LAW (SECOND DEPT).

The Second Department, reversing (modifying} Supreme Court, determined that the homeowners’ association board (Fieldpoint) had the authority to require a homeowner to take down a fence and to fine the homeowner. However, the rule in effect at the time the fence was erected allowed only a one-time fine of $50.00. Supreme Court had awarded the […]

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PLAINTIFF BANK DID NOT PROVIDE AN ADEQUATE EXCUSE FOR FAILING TO TAKE A TIMELY DEFAULT JUDGMENT; THE FORECLOSURE ACTION WAS ABANDONED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the foreclosure action should have been dismissed because plaintiff’s excuse for failing to take a timely default judgment was inadequate: To avoid dismissal of a complaint pursuant to CPLR 3215(c) as abandoned, a plaintiff must demonstrate both that there is a reasonable excuse for the delay and that […]

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