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Entries by Bruce Freeman

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PLAINTIFF’S COMPLAINT ALLEGING THE LANDLORD ENGAGED IN A FRAUDULENT SCHEME TO DEREGULATE APARMTENTS WAS PROPERLY DISMISSED (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Hinds-Radix, determined plaintiff’s complaint alleging the landlord engaged in a fraudulent scheme to deregulate apartments was properly dismissed. The opinion is too complex to fairly summarize here: … [T]he deregulation of the plaintiff’s apartment was made in good faith … . Further, the late registration of […]

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THE FORECLOSURE ACTION WAS PROPERLY DISMSSED AS TIME-BARRED; RPAPL 1304 IS A CONDITION PRECEDENT, NOT A STATUTORY PROHIBITION WHICH WOULD TOLL THE STATUTE OF LIMITATIONS (SECOND DEPT).

The Second Department, over a two-justice partial dissent, determined the defendant’s motion to dismiss the foreclosure action as time-barred, cancel the notice of pendency and cancel and discharge the mortgage (RPAPL article 15) was properly granted. The decision is too complex and factually specific to fairly summarize here (but well worth reading). One of the […]

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PLAINTIFF FAILED TO DEMONSTRATE STANDING TO SUE UNDER AN INSTALLMENT CONTRACT ALLEGEDLY ASSIGNED TO HIM; THE DOCUMENTS UPON WHICH PLAINTIFF RELIED DID NOT MEET THE CRITERIA FOR THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff should not have been granted summary judgment on an installment contract for the purchase of a car which plaintiff alleged was assigned to him. Plaintiff did not demonstrate the documents he relied on for standing fit the criteria for the business records exception to the hearsay rule: […]

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PLAINTIFF’S DECEDENT WAS FOUND AT THE BOTTOM OF STAIRS; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED BECAUSE THE CAUSE OF THE FALL WAS UNKNOWN; IN ADDITION, THE NOSEWORTHY DOCTRINE DID NOT APPLY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this slip and fall case should have been granted because the cause of the fall was unknown. Plaintiff’s decedent was found dead at the bottom of the stairs [Defendants] moved … for summary judgment dismissing the complaint … contending … that the […]

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A FAMILY RELATIONSHIP WITH THE VICTIM, STANDING ALONE, DOES NOT WARRANT AN UPWARD DEPARTURE FROM THE SORA RISK ASSESSMENT GUIDELINES (SECOND DEPT).

The Second Department, reversing Supreme Court’s imposition of an upward departure from the SORA risk assessment guidelines, explained that the existence of a family relationship with the victim, standing alone, does not warrant an upward departure: People seek an upward departure, they must identify an aggravating factor that tends to establish a higher likelihood of […]

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THE BASES FOR THE UPWARD DEPARTURE WERE ALREADY TAKEN INTO ACCOUNT BY THE SORA RISK ASSESSMENT GUIDELINES; UPWARD DEPARTURE REVERSED (SECOND DEPT).

The Second Department, reversing County Court’s upward departure from the SORA guidelines, determined the bases for the departure had been taken into account by the guidelines: County Court lacked the discretion to upwardly depart from the presumptive risk assessment level because the People failed, as a matter of law, to identify an aggravating factor that […]

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THE PEOPLE PRESENTED INSUFFICIENT PROOF ON RISK FACTORS 2 AND 4, REQUIRING A 45 POINT REDUCTION (SECOND DEPT).

The Second Department, reducing defendant’s risk assessment by 45 points, without explaining the facts, determined the People did not submit sufficient evidence on two risk factors: Supreme Court improperly assessed 25 points under risk factor 2 (sexual contact with victim) and 20 points under risk factor 4 (continuing course of sexual misconduct), as the People […]

PLAINTIFF WAS INJURED ATTEMPTING TO HOLD BACK A HAND TRUCK WITH A 500 POUND LOAD AS HE WAS DESCENDING STAIRS; IT WAS POSSIBLE TO LOWER THE LOAD USING RIGGING IN AN ELEVATOR SHAFTWAY BUT PLAINTIFF WAS DIRECTED TO USE THE STAIRS; PLAINTIFF WAS PROPERLY AWARDED SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION (FIRST DEPT).

The First Department determined plaintiff was properly awarded summary judgment on his Labor Law 240 (1) cause of action. Plaintiff was injured trying to keep a hand truck from descending stairs too fast with a 500 pound load. The load could have been lowered with rigging equipment in an elevator shaftway but was directed to […]

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PLAINTIFF, WHO WAS ASSAULTED IN DEFENDANT LANDLORD’S BUILDING, DID NOT RAISE A QUESTION OF FACT WHETHER THE ASSAILANT WAS AN INTRUDER, WHO ENTERED THROUGH AN ALLEGEDLY BROKEN DOOR, OR A TENANT OR AN INVITEE; IF THE ASSAILANT WERE A TENANT OR INVITEE, THE ALLEGEDLY BROKEN DOOR WOULD NOT BE A PROXIMATE CAUSE OF PLAINTIFF’S INJURY (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant landlord’s motion for summary judgment in this third-party assault case should have been granted. Although there was an issue of fact whether exterior doors to the apartment building were operable in the day plaintiff was assaulted, plaintiff did not raise a question of fact about whether the […]

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