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Entries by Bruce Freeman

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PLAINTIFF BANK IN THIS FORECLOSURE ACTION DID NOT DEMONSTRATE STANDING WITH SUFFICIENT PROOF THAT THE NOTE WAS LOST (PURSUANT TO THE UCC) AND DID NOT PRESENT EVIDENCE SUFFICIENT TO WARRANT CORRECTION OF THE LEGAL DESCRIPTION OF THE PREMISES IN THE MORTGAGE BASED UPON MUTUAL MISTAKE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank did not demonstrate the note was lost and did not present sufficient evidence to warrant correction of the legal description of the premises in the mortgage: “Pursuant to UCC 3-804, which is intended to provide a method of recovery on instruments that are lost, destroyed, or […]

PLAINTIFF’S ACTION ALLEGING INADEQUATE BUILDING SECURITY WAS A PROXIMATE CAUSE OF AN ASSAULT ON PLAINTIFF IN THE BUILDING LOBBY SHOULD NOT HAVE BEEN DISMISSED; THERE WAS EVIDENCE OF PRIOR CRIMINAL ACTIVITY RAISING A QUESTION OF FACT WHETHER THE ASSAULT WAS FORESEEABLE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff security guard’s third-party assault action stemming from an assault by young persons who entered the lobby where plaintiff was working through an unlocked door should not have been dismissed. There was evidence the assault was foreseeable: … [T]he defendants did not demonstrate their prima facie entitlement to […]

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DEFENDANT NEVER CONSENTED TO THE SUBSTITUTION OF COUNSEL IN THIS FORECLOSURE ACTION; THE MOTION FOR SUMMARY JUDGMENT, SERVED ON THE PURPORTED SUBSTITUTE COUNSEL, WAS NEVER SERVED UPON DEFENDANT AND WAS THEREFORE NULLIFIED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determine the plaintiff’s motion for a default judgment in this foreclosure action was not properly served and therefore must be reversed. The papers were served on an attorney but defendant had not consented to the substitution of thst attorney: … [T]he record demonstrates that the plaintiff served its […]

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THE JURY’S FINDING THAT PLAINTIFF IN THIS SLIP AND FALL CASE WAS NEGLIGENT BUT THAT DEFENDANT WAS 100% RESPONSIBLE WAS AGAINST THE WEIGHT OF THE EVIDENCE; ALLOWING PLAINTIFF’S DOCTOR TO TESTIFY DEFENDANT’S DOCTOR WAS HIRED BY AN INSURANCE COMPANY, WITHOUT GIVING A CURATIVE INSTRUCTION, WAS REVERSIBLE ERROR (FIRST DEPT).

The First Department, ordering a new trial on liability and damages in this slip and fall case, determined the finding that plaintiff was negligent but that defendant was 100% responsible was against the weight of the evidence. In addition, allowing plaintiff’s physician to mention that defendant’s physician was hired by an insurance company was reversible […]

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THE PORTION OF THE NONCOMPETE AGREEMENT WHICH PROHIBITED ENGAGING IN A SIMILAR PRACTICE OF LAW WITHIN 90 MILES OF NYC FOR 36 MONTHS WAS NULL AND VOID; HOWEVER THE PORTION WHICH PROHIBITED THE SOLICITATION OF CLIENTS WAS ENFORCEABLE AND SURVIVED SUMMARY JUDGMENT (FIRST DEPT).

The First Department determined that, although part of the noncompete agreement was null and void, the prohibition of soliciting plaintiff’s clients was enforceable. Therefore defendants’ motion for summary judgment was properly denied. Plaintiff Feiner & Lavy, P.C., is a law firm that specializes in immigration law. Defendant Gadi Zohar, Esq. was a former associate attorney […]

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WHERE THERE IS A DISPUTE ABOUT THE EXISTENCE OF A CONTRACT A CAUSE OF ACTION FOR UNJUST ENRICHMENT IS NOT DUPLICATIVE (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court noted that where there is a dispute about the existence of an enforceable contract, a cause of actiono for unjust enrichment is not duplicative: With respect to the unjust enrichment … [t]hese claims should not have been dismissed as duplicative because “where there is a bona fide dispute […]

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INFANT PLAINTIFF, H.M., WAS INJURED BY HOT WATER IN THE SHOWER; THE PROPERTY OWNER WHO REPLACED THE WATER HEATER MAY BE LIABLE; THE FOSTER-CARE SERVICE WHICH PLACED H.M. IN THE HOME, HOWEVER, COULD NOT HAVE FORESEEN THE INCIDENT (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined there was a question of fact whether the property owner could be liable for injury to a child, H.M. caused by hot water in the shower. The defendant placement service (Leake) had placed H,M. in the foster care of defendant Butler who lived in a home owned […]

DEFENDANT WAS TOLD HE FACED A 45-YEAR SENTENCE AFTER TRIAL WHEN THE ACTUAL SENTENCE WOULD HAVE BEEN CAPPED AT 20 YEARS; DEFENDANT’S DECISION TO PLEAD GUILTY WAS NOT KNOWINGLY AND VOLUNTARILY MADE (FIRST DEPT).

The First Department, vacating defendant’s guilty pleas, determined defendant’s pleas were not knowingly and voluntarily entered because was told he could be sentenced to 45 years after trial when the sentence would have been capped at 20 years: Defendant was told that he faced the possibility of serving three 15-year sentences, to run consecutively, if […]

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ALL EIGHT OF THE SCHOOL DISTRICTS EXAMINED VIOLATED THE CONSTITUTIONAL REQUIRMENT TO PROVIDE A SOUND EDUCATION TO THE AT-RISK STUDENT POPULATIONS (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Lynch, determined the plaintiffs established a violation of the constitutional requirement to provide a sound education to the at-risk student population in all of the school districts named in the action—Jamestown, Kingston, Mount Vernon, Newburgh, Niagara Falls, Port Jervis, Poughkeepsie, and Utica: … [P]laintiffs in this […]

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PURSUANT TO ECL 23-2711, THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION DID NOT HAVE THE AUTHORITY TO ISSUE A MINING PERMIT BECAUSE THE TOWN LAW PROHIBITED MINING (THIRD DEPT).

The Third Department, reversing Supreme Court, over an extensive dissent, determined the mining permit issued by the Department of Environmental Conservation (DEC) must be annulled pursuant to Environmental Conservation Law (ECL) 23-2711 because the local law prohibiting mining. The permit purported to allow the expansion of an existing mining operation: ECL 23-2703 (3) provides that, […]

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