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Entries by Bruce Freeman

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IN THIS “RESIDENTIAL MORTGAGE BACKED SECURITIES” AND “COLLATERALIZED DEBT OBLIGATION” ACTION, PLAINTIFF RAISED QUESTIONS OF FACT ABOUT WHETHER DEFENDANTS’ FRAUD, AS OPPOSED TO THE 2008-2009 FINANCIAL CRISIS, CAUSED PLAINTIFF’S LOSS, AND WHETHER AN OMISSION ON DEFENDANTS’ PART WAS AN ACTIONABLE MISREPRESENTATION; SUPREME COURT REVERSED (FIRST DEPT).

The First Department, reversing Supreme Court, over an extensive dissent, determined defendants’ motion for summary judgment in this “residential mortgage backed securities (RMBS)” and “collateralized debt obligation (CDO)” fraud action should not have been granted. The plaintiff raised questions of fact whether defendants’ fraud, as opposed to the 2008-2009 financial crisis, caused plaintiff’s loss, and […]

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DEFENDANT OWNS A VINEYARD IN WHICH PLAINTIFF WAS INJURED IN AN ALL-TERRAIN-VEHICLE ACCIDENT; DEFENDANT WAS ENTITLED TO IMMUNITY PURSUANT TO GENERAL OBLIGATIONS LAW 9-103 BECAUSE THE VINEYARD WAS “SUITABLE FOR RECREATIONAL USE” (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant’s property (a vineyard) was suitable for recreational use and therefore defendant was entitled to immunity pursuant to General Obligations Law 9-103. Defendant was not liable for plaintiff’s injuries from an all-terrain-vehicle (ATV) accident which occurred when the driver missed a bridge over a culvert: … “[D]efendant, as […]

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ALTHOUGH DOMINICA, THE EXECUTRIX OF JOSEPHINE’S ESTATE, WAS NEVER SUBSTITUTED FOR JOSEPHINE AFTER JOSEPHINE’S DEATH, DOMINICA APPEARED AND ACTIVELY LITIGATED A MOTION TO VACATE; THE FAILURE TO EFFECT SUBSTITUTION IN THAT CIRCUMSTANCE IS A MERE IRREGULARITY; TWO-JUSTICE DISSENT (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, determined the failure to substitute the executrix of Josephine’s estate, Dominica P., after Josephine’s death did not nullify the proceedings. Dominca P appeared and actively litigated a motion to vacate brought by Kathleen. In that circumstance the failure to effect substitution was deemed a mere irregularity: Josephine died […]

PETITIONER’S OBJECTION TO THE SUPPORT MAGISTRATE’S ORDER SHOULD NOT HAVE BEEN DENIED; THE CSSA APPLIES EVEN WHEN THE CHILD RECEIVES PUBLIC ASSISTANCE; DOWNWARD DEVIATION FROM THE PRESUMPTIVE SUPPORT LEVEL IMPROPERLY APPLIED THE PROPORTIONAL OFFSET METHOD (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined petitioner’s objections to the Support Magistrate’s order should not have been denied: It is well settled that “the CSSA [Child Support Standards Act] must be applied to all child support orders, regardless of a child’s receipt of public assistance” … . Here, the Support Magistrate purported to reduce […]

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THE FULL AMOUNT OF THE NOTE WAS NOT RECOVERABLE BECAUSE THERE WAS NO ACCELERATION CLAUSE; CLAIMS FOR UNPAID INSTALLMENTS DUE MORE THAN SIX YEARS BEFORE FILING SUIT WERE TIME-BARRED (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined the full amount of the note could not be recovered because it did not include an acceleration clause. In addition, claims for unpaid installments due more than six years before the filing of the lawsuit were time-barred: “As a general rule, in the absence of an acceleration […]

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PLAINTIFFS’ CAUSES OF ACTION ALLEGING EXPOSURE TO TOXIC FUMES ARE TIME-BARRED PURSUANT TO CPLR 214-C (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the causes of action alleging exposure to toxic fumes and hazardous substances were time-barred: … [T]he … causes of action [alleging] the purported exposure to toxic fumes and hazardous substances (exposure claims) because they are untimely under the applicable three-year statute of limitations (see CPLR 214-c [2]). … […]

INCLUSORY CONCURRENT COUNTS DISMISSED (FOURTH DEPT).

The Fourth Department dismissed course of criminal conduct first degree and rape first degree counts as inclusory concurrent counts of predatory sexual assault against a child: … [C]ounts two and four of the indictment, charging defendant with course of sexual conduct against a child in the first degree (Penal Law § 130.75 [1] [b]) and […]

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MOTHER VIOLATED A COURT ORDER BY RELOCATING TO ARIZONA WITH THE CHILD; HOWEVER, HER ALLEGATIONS OF DOMESTIC ABUSE BY FATHER WERE CREDIBLE AND WARRANTED GRANTING HER CROSS PETITION TO RELOCATE (FOURTH DEPT).

The Fourth Department, in a full-fledged opinion by Justice Troutman, determined mother’s cross petition to relocate with the child was properly granted, despite mother’s violation of a court order prohibiting her from permanently leaving Monroe County with the child without father’s consent, or without a court order allowing relocation. Mother testified that father was abusive […]

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A TIMELY BUT DEFECTIVE ATTEMPT TO COMMENCE AN ARTICLE 78 PROCEEDING IS A JURISDICTIONAL DEFECT WHICH CANNOT BE CURED BY A SECOND ATTEMPT AFTER THE FOUR-MONTH STATUTE OF LIMITATIONS HAS RUN (FIRST DEPT).

The First Department, reversing Supreme Court, determined the petitioner’s Article 78 action should have been dismissed because it was not properly commenced within four months. An attempt to commence the action was timely made, but the petition was returned: An article 78 proceeding must be commenced within four months of the final determination under review […]

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THERE IS A QUESTION OF FACT WHETHER DEFENDANTS HAD CONSTRUCTIVE NOTICE OF THE WORN STEP IN THIS SLIP AND FALL CASE; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined there was a question of fact whether defendants had constructive notice of the condition of a step in this slip and fall case: … [T]he affidavit of plaintiff’s expert and the photographic evidence were sufficient to raise an issue of fact as to constructive notice. The expert opined […]

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