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Entries by Bruce Freeman

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SUPREME COURT PROPERLY REJECTED THE LANDLORD’S CALCULATION OF RENT OVERCHARGES FOR RENT-REGULATED APARTMENTS REMOVED FROM RENT STABILIZATION WHILE THE BUILDING WAS RECEIVING J-51 TAX BENEFITS (FIRST DEPT).

The First Department, over a dissent, determined Supreme Court properly refused to consider defendant landlord’s (Whitehouse’s) calculation of rent overcharges and ordered calculation by a referee. The landlord had removed rent-regulated apartments from rent stabilization while the building received J-51 tax benefits: We find that the motion court correctly determined that plaintiffs’ legal regulated rent […]

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PLAINTIFF DID NOT SHOW DUE DILIGENCE IN ASCERTAINING THE NAME OF THE PARTY REFERRED TO AS “JOHN DOE” IN THE COMPLIANT RENDERING THE ACTION TIME-BARRED; ALTHOUGH THE COURT PROPERLY DEEMED PROOF OF SERVICE OF THE COMPLAINT AGAINST THE NAMED PARTY TIMELY FILED NUNC PRO TUNC, THE DEFAULT JUDGMENT AGAINST THE NAMED PARTY SHOULD NOT HAVE BEEN GRANTED RETROACTIVELY ONCE THE DEFECT WAS CURED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court in this foreclosure action, determined plaintiff should not have been allowed to substitute the party’s name (here Esther Shaskos) for the “John Doe” named in the complaint because the plaintiff did not demonstrate it exercised due diligence to timely ascertain Esther’s identity. Therefore the complaint as against Esther […]

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THE CITY ORDERED PLAINTIFF TO REPAIR A WATER LEAK ON PLAINTIFF’S PROPERTY WHICH THE CITY CLAIMED CAUSED A SINK HOLE IN THE ABUTTING ROAD; PLAINTIFF PAID FOR EXCAVATING THE AREA AND FIXING THE ROAD; PLAINTIFF SUED THE CITY ALLEGING THERE WAS NO WATER LEAK AND THE CITY NEGLIGENTLY ORDERED HER TO REPAIR THE ROAD; THE NEGLIGENCE CAUSE OF ACTION WAS PROPERLY DISMISSED (NO SPECIAL RELATIONSHIP WITH PLAINTIFF), BUT THE UNJUST ENRICHMENT CAUSE OF ACTION BASED ON PLAINTFF’S PAYING FOR THE REPAIR OF THE PUBLIC ROAD SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the negligence cause of action against the city was properly dismissed, but the unjust enrichment cause of action should not have been dismissed. A sink hole developed in front of plaintiff’s proper. The city concluded there was a leak in the water connection to plaintiff’s property and […]

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THE FACT THAT A CONTRACT DESCRIBES A PARTY AS AN INDEPENDENT CONTRACTOR IS NOT NECESSARILY DISPOSITIVE; DESPITE THE WORDING OF THE CONTRACT, THE COMPLAINT HERE STATED A CAUSE OF ACTION BASED UPON AN EMPLOYER-EMPLOYEE RELATIONSHIP (SECOND DEPT).

The Second Department determined the complaint stated a cause of action against the school district as the employer of a therapist, Silecchia, who allegedly injured plaintiff-student in therapy session. Although the contract between the school district and Silecchia’s employer, PBS, stated PBS was responsible for the conduct of PBS’s employees, evidence suggested some control over […]

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THE MOTION TO RESETTLE REQUESTED A SUBSTANTIVE CHANGE IN THE PARTIES’ RIGHTS WHICH CANNOT BE ADDRESSED BY RESETTLING AN ORDER; A MOTION TO RESETTLE IS MEANT TO ADDRESS CLERICAL ERRORS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion to resettle the court’s order requested a substantive change in the parties’ rights which can not be addressed by resettling an order: … [T]he court … granted that branch of the plaintiff’s motion which was to resettle the order … and thereupon deleted the provision directing […]

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ALTHOUGH THE WARRANTLESS SEARCH OF THE INTERIOR OF THE CAR FOR MARIJUANA WAS JUSTIFIED, THE FORGED CREDIT CARDS SHOULD NOT HAVE BEEN EXAMINED AND SIEZED; THERE WAS NOTHING ABOUT THE CARDS WHICH INDICATED THEY WERE CONTRABAND UNDER THE “PLAIN VIEW” DOCTRINE; THE COMPREHENSIVE DISCUSSION OF THE CRITERIA FOR WARRANTLESS SEARCHES UNDER THE NYS CONSTITUTION IS WORTH CONSULTING (SECOND DEPT).

The Second Department, reversing Supreme Court, in a comprehensive decision addressing the criteria for warrantless searches under the NYS Constitution, determined the credit cards seized in a legitimate warrantless automobile search for marijuana should have been suppressed. Although it turned out the credit cards were forged, there was nothing about their appearance which justified ascertaining […]

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DEFENDANT DID NOT DEMONSTRATE HE DID NOT ENTER HIS GUILTY PLEA VOLUNTARILY, KNOWINGLY AND INTELLIGENTLY; HIS MOTION TO WITHDRAW HIS PLEA WAS PROPERLY DENIED; STRONG DISSENT ARGUED DEFENDANT DEMONSTRATED AN INADQUATE OPPORTUNITY TO CONSULT WITH DEFENSE COUNSEL (SECOND DEPT).

The Second Department, over an extensive dissent, determined defendant entered his guilty plea voluntarily, knowingly and intelligently. Therefore, defendant’s motion to withdraw his plea was properly denied. The dissent argued defendant demonstrated he did not have an adequate opportunity to consult with defense counsel: The defendant … contended in his motion that he had inadequate […]

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THE DENIAL OF A MOTION TO SEAL A CRIMINAL CONVICTION IS CIVIL IN NATURE AND IS THEREFORE APPEALABLE, NOT WITHSTANDING THE ABSENCE OF A CRIMINAL-PROCEDURE STATUTE EXPRESSLY AUTHORIZING APPEAL (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Brathwaite Nelson, determined the denial of a motion to seal a criminal conviction pursuant to Criminal Procedure Law 160.59 is appealable. Appeals in criminal matters must be authorized by statute. The court deemed the motion to seal to be civil in nature ant therefore not subject […]

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COURTS HAVE THE DISCRETION TO GRANT A MOTION TO RENEW EVEN IF BASED ON INFORMATION KNOWN AT THE TIME OF THE ORIGINAL MOTION; HERE THE MOTION TO RENEW ADDRESSED AN OMISSION IN THE ORGINGAL MOTION PAPERS WHICH THE JUDGE HAD RAISED SUA SPONTE AS THE GROUND FOR DENYING THE MOTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion to renew in this foreclosure action should have been granted. The judge denied plaintiff’s motion for summary judgment on a ground not raised by the parties—plaintiff’s failure to submit a power of attorney authorizing a party to act as a loan servicer. The motion to renew […]

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