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Entries by Bruce Freeman

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GRANDMOTHER SHOULD HAVE BEEN NOTIFIED OF HER RIGHT TO COUNSEL IN THIS CUSTODY CASE; MATTER SENT BACK TO FAMILY COURT TO DETERMINE WHETHER GRANDMOTHER WAS ELIGIBLE FOR ASSIGNED COUNSEL (THIRD DEPT).

The Third Department determined grandmother should have been notified of her right to counsel in this custody case. But the question remains whether grandmother would have qualified (financially) for assigned counsel. The matter was sent back to Family Court to rule on grandmother’s eligibility for assigned counsel: We find merit to the grandmother’s argument that […]

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DEFENDANT WAS ENTITLED TO A HEARING ON HIS MOTION TO VACATE HIS CONVICTION BY GUILTY PLEA ON INEFFECTIVE ASSISTANCE OF COUNSEL GROUNDS; DEFENDANT AVERRED HE WAS NOT INFORMED OF THE RISK OF DEPORTATION ASSOCIATED WITH THE PLEA (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant was entitled to a hearing on his motion to vacate his conviction on ineffective assistance grounds. Defendant averred that he was not informed of the risk of deportation associated with his guilty plea: … [I]n the context of a plea of guilty, an attorney’s failure to advise […]

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DEFENDANT WAS NOT INFORMED OF THE PERIOD OF POSTRELEASE SUPERVISION AT THE TIME OF THE GUILTY PLEA; PLEA VACATED (SECOND DEPT).

The Second Department, vacating defendant’s guilty plea, determined the plea was not knowingly and voluntarily entered because defendant was not informed of the period of postrelease supervision: … [F]or a plea of guilty to be knowing, intelligent, and voluntary, the court must inform the defendant of either the specific period of postrelease supervision that will […]

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PLAINTIFF IN THIS FORECLOSURE ACTION DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 1304 (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the plaintiff in this foreclosure action did not demonstrate compliance with the notice provisions of RPAPL 1304: Although the RPAPL 1304 notices were allegedly mailed from New York by the same law firm that filed the summary judgment motion on behalf of the plaintiff, no one from that […]

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IN DETERMINING WHETHER A PRIMA FACIE CASE HAS BEEN MADE OUT IN A FAMILY OFFENSE PROCEEDING, CREDIBILITY IS IRRELEVANT (SECOND DEPT).

The Second Department, reversing Family Court, determined the motion to dismiss the family offense petition for failure to make out a prima facie case should not have been granted, noting that the credibility of the evidence is not a factor to be considered at that stage: In a family offense proceeding, the petitioner has the […]

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THE ATTORNEY FOR THE CHILD, IN A BRIEF TO THE APPELLATE COURT, ALERTED THE COURT TO NEW INFORMATION RELEVANT TO THE CUSTODY RULING BY FAMILY COURT; THE MATTER WAS REMITTED FOR A REOPENED HEARING (SECOND DEPT).

The Second Department sent the matter back to Family Court for a reopened custody hearing after the attorney for the child alerted the court to new relevant information: … [T]he attorney for the child, in the brief submitted to this Court on the child’s behalf, has brought to this Court’s attention certain alleged new developments […]

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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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