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Entries by Bruce Freeman

ALTHOUGH THE HOMEOWNER HIRED CONTRACTORS TO REPAIR HER HOME AND VISITED THE PROPERTY AS THE WORK WAS BEING DONE SHE DID NOT DIRECT OR SUPERVISE THE WORK AND THEREFORE WAS ENTITLED TO SUMMARY JUDGMENT DISMISSING THE LABOR LAW 240(1), 241(6) AND 200 CAUSES OF ACTION (SECOND DEPT).

The Second Department determined defendant homeowner’s (Hanson’s) motion for summary judgment in this Labor Law 240(1), 241(6) and 200 action was properly granted, in part because the homeowner’s exemption from Labor Law liability applied. The facts that the homeowner hired several contractors to repair her home and visited the property while work was being done […]

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THE APPLICABILITY OF THE CHILD SUPPORT STANDARDS ACT (CSSA) WAS NOT ADEQUATELY WAIVED IN THE STIPULATION OF SETTLEMENT; THE CHILD SUPPORT PROVISIONS OF THE STIPULATION SHOULD HAVE BEEN VACATED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the child support provisions of the stipulation of settlement should have been vacated because the applicability of Child Support Standards Act (CSSA) was not waived: Parties to a separation agreement are free to “opt out” of the provisions of the Child Support Standards Act (Domestic Relations Law § […]

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PLAINTIFF’S EXPERT’S AFFIDAVIT IN THIS MEDICAL MALPRACTICE ACTION WAS NOT CONCLUSORY OR SPECULATIVE; THE AFFIDAVIT DEMONSTRATED THE EXPERT WAS QUALIFIED TO RENDER AN OPINION ON PROPER WOUND CARE; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s expert’s affidavit should not have been rejected on the ground the expert was not qualified to give an opinion on proper wound care, or on the ground the affidavit was conclusory: … [T]he plaintiff raised a triable issue of fact through the expert affirmation of Craig A. […]

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IN THIS FORECLOSURE ACTION PLAINTIFF’S ATTORNEY DID NOT FILE AN AFFIRMATION AS REQUIRED BY AN ADMINSTRATIVE ORDER; THE MAJORITY DID NOT ADDRESS THE ISSUE BECAUSE IT SHOULD HAVE BEEN RAISED IN A PRIOR APPEAL WHICH DEFENDANT DID NOT PERFECT; THE DISSENT ARGUED THE ISSUE COULD AND SHOULD BE CONSIDERED ON THIS APPEAL (THIRD DEPT).

The Third Department, over a dissent, determined defendant in this foreclosure action could not raise the plaintiff’s failure to comply with an Administrative Order (AO) because it could have been raised on a prior appeal which was not perfected. The dissent argued the court could and should address the “AO” issue on this appeal: From […]

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THERE ARE QUESTIONS OF FACT ABOUT WHETHER THE ROAD LEADING TO PETITIONER’S PROPERTY WAS PROPERLY CERTIFIED “ABANDONED” SUCH THAT THE MUNICIPALITY IS NOT RESPONSIBLE FOR ITS MAINTENANCE; AND PETITIONER STATED AN EQUAL-PROTECTION CLAIM UNDER 42 USC 1983 (THIRD DEPT).

The Third Department, reversing Supreme Court, over a two-justice dissent, determined there were questions of fact whether the road (Van Slyke Road) leading to petitioner’s property should have been certified “abandoned” such that the town did not have to maintain it. The two dissenters argued petitioner did not state an equal-protection claim alleging selective enforcement […]

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SEPARATE TRIALS WERE HELD ON THE TORT AND BREACH OF CONTRACT ACTIONS STEMMING FROM DAMAGE TO PLAINTIFFS’ BUILDING CAUSED BY RENOVATION OF DEFENDANT’S NEIGHBORING BUILDING; THE DAMAGES AWARDED IN EACH ACTION WERE BASED UPON THE SAME EVIDENCE OF THE COST OF REPAIR AND ALTERNATE LIVING EXPENSES BUT THE AMOUNTS OF THE AWARDS DIFFERED; SUPREME COURT PROPERLY ENTERED THE DAMAGES AWARDED IN THE BREACH OF CONTRACT ACTION, PLUS INTEREST AND ATTORNEY’S FEES, AS THE APPEALABLE FINAL JUDGMENT (FIRST DEPT).

The First Department, in an extensive opinion by Justice Moulton, addressed several unusual issues stemming from the allegation the renovation of defendant’s neighboring property damaged plaintiffs’ property. Two separate trials were held: a jury trial on tort (negligence) claims; and a nonjury trial on breach of contract claims (i.e., the contract allowing defendants access to […]

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THE MAJORITY DETERMINED DEFENDANT’S ARGUMENT HIS GUILTY PLEA WAS NOT VOLUNTARILY ENTERED WAS NOT PRESERVED; THE DISSENT ARGUED DEFENDANT WAS NOT ADEQUATELY INFORMED OF HIS BOYKIN RIGHTS AND THE CONVICTION SHOULD BE REVERSED IN THE INTEREST OF JUSTICE (THIRD DEPT).

The Third Department, over a dissent, determined defendant’s argument that his guilty plea was not knowingly, voluntarily and intelligently entered was rejected by the majority as unpreserved. The dissent agreed the issue was not preserved but argued the judge’s failure to adequately inform defendant of the Boykin rights warranted reversal in the interest of justice: […]

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DEFENDANTS’ DEFAULT IN MAKING MORTGAGE PAYMENTS WAS NOT SUPPORTED BY THE SUBMISSION OF THE RELEVANT BUSINESS RECORDS; THEREFORE PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the proof of defendants’ default in mortgage payments was based upon business records which were not produced: … [T]he plaintiff failed to establish, prima facie, the defendants’ default in payment by submitting the affidavit of Haley Pope, the Foreclosure Manager for its loan servicer. Pope did not specifically […]

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ALTHOUGH DEFENDANT WAS IN DEFAULT IN THIS FORECLOSURE ACTION, SHE STILL CAN CONTEST THE AMOUNT OWED; THE REFEREE’S REPORT HERE WAS REJECTED BECAUSE IT WAS BASED IN PART ON UNPRODUCED BUSINESS RECORDS AND THE MATTER WAS REMITTED FOR RECALCULATION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the referee’s report in this foreclosure action should have been rejected because it was based in part on business records which were not produced. Although defendant was in default, she still could contest the amount owed: The fact that the defendant defaulted in appearing did not mean that […]

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IN THIS DIVORCE ACTION SUPREME COURT ABUSED ITS DISCRETION IN IMPUTING TOO MUCH INCOME TO AND AWARDING TOO LITTLE MAINTENANCE TO PLAINTIFF WIFE; IN ADDITION DEFENDANT SHOULD NOT HAVE BEEN AWARDED 50% OF THE VALUE OF PLAINTIFF’S BUSINESS AND THE COURT SHOULD NOT HAVE ORDERED A POSTTRIAL VALUATION OF THE BUSINESS (SECOND DEPT).

The Second Department, reversing Supreme Court in this divorce action, determined the imputation of income to plaintiff, the amount of maintenance awarded to plaintiff were not supported by the evidence. In addition the award of 50% of plaintiff’s business to defendant and the ordering of a posttrial valuation of the business were deemed improper: … […]

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