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Entries by Bruce Freeman

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DEFENDANT ATTORNEY WAS UNABLE TO DEMONSTRATE PLAINTIFFS LEARNED OF DEFENDANT’S ALLEGED FRAUD MORE THAN TWO YEARS BEFORE THE ACTION WAS COMMENCED; THE STATUTE OF LIMITATIONS FOR THE UNJUST ENRICHMENT AND AIDING AND ABETTING BREACH OF FIDUCIARY DUTY IS SIX YEARS BECAUSE OF THE ALLEGATIONS OF FRAUD (FIRST DEPT).

The First Department determined the fraud, unjust enrichment and aiding and abetting breach of fiduciary duty causes of action were timely brought against defendant attorney. Defendant attorney represented a party who was found to have defrauded plaintiffs in an arbitration resulting in a $56,4 million judgment. Plaintiffs alleged the attorney’s participation in the fraud was […]

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PLAINTIFF’S ALLEGATION DEFENDANT SUPERVISOR CONDITIONED HIS SUPPORT OF PLAINTIFF AT WORK ON HER COMPLIANCE WITH HIS DEMANDS FOR SEX SUPPORTED PLAINTIFF’S REQUEST FOR PUNITIVE DAMAGES RE: DEFENDANT SUPERVISOR AND DEFENDANT EMPLOYER (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined the punitive damages request in this employment discrimination action should not have been dismissed: The request for punitive damages should be reinstated. [defendant] Ravich’s conduct in conditioning his support of plaintiff at work on her compliance with his demands for sex, if proven, would be sufficient to […]

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NO PROOF DEFENDANT’S BACKPACK WAS WITHIN DEFENDANT’S REACH WHEN IT WAS SEIZED AND SEARCHED; THEREFORE THE SEARCH WAS NOT A VALID SEARCH INCIDENT TO ARREST (CT APP).

The Court of Appeals, reversing the Appellate Division, in a brief memorandum decision, determined the search of defendant’s backpack could not be justified as a search incident to arrest because there was no evidence the backpack was within defendant’s reach when it was seized and searched: The People failed to establish that the warrantless search […]

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THE TRAFFIC AND PARKING VIOLATIONS BUREAU (TPVA) IS A CRIMINAL COURT WHICH CANNOT ISSUE A DEFAULT JUDGMENT WHEN A DEFENDANT FAILS TO APPEAR FOR A TRAFFIC-INFRACTION TRIAL; IN CONTRAST, A TRAFFIC VIOLATIONS BUREAU (TVB) IS AN ADMINISTRATIVE AGENCY, NOT A CRIMINAL COURT, AND MAY ISSUE A DEFAULT JUDGMENT (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Garcia, determined the Suffolk County Traffic and Parking Violations Bureau (TPVA) is a criminal court which cannot issue a default judgment when a defendant who has pled not guilty does not show up for a traffic-infraction trial. On the other hand, a Traffic Violations Bureau […]

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ONCE THE APPELLATE DIVISION DECIDED THE NYC DEPARTMENT OF BUILDINGS ACTED RATIONALLY IN APPROVING THE USE OF A BUILDING AS A HOMELESS SHELTER ITS JUDICIAL REVIEW WAS DONE; THE APPELLATE DIVISION SHOULD NOT HAVE REMITTED THE MATTER FOR A HEARING ON THE SAFETY OF THE BUILDING (CT APP).

The Court of Appeals, reversing the Appellate Division, determined the Appellate Division did not have the authority to send the matter back for a hearing after finding the NYC Department of Buildings (DOB) acted rationally when it approved the use of a building as a homeless shelter: The Appellate Division erred in remitting to Supreme […]

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DEFENDANT DRIVER RAISED A QUESTION OF FACT ABOUT WHETHER THE DRIVER OF THE CAR IN WHICH PLAINTIFF WAS A PASSENGER WAS NEGLIGENT; THE FACT THAT THE DEFENDANT’S OUT-OF-STATE AFFIDAVIT DID NOT HAVE A CERTIFICATE OF CONFORMITY DID NOT AFFECT ITS VALIDITY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the motion for summary judgment by Ellis, the driver of the car in which plaintiff was a passenger, should have been denied. And the cross motion for summary judgment by plaintiff should have been denied. The defendant driver’s description of the accident raised a question of fact whether […]

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THE BANK DID NOT DEMONSTRATE STANDING TO BRING THE FORECLOSURE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank did not present sufficient evidence of standing to bring the foreclosure action. Therefore the bank’s motion for summary judgment should not have been granted: Generally, in order to establish prima facie entitlement to judgment as a matter of law in a foreclosure action, a plaintiff must […]

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PLAINTIFF’S EXPERT RAISED ISSUES OF FACT ABOUT WHETHER EXPOSURE TO ASBESTOS CAUSED THE INJURY TO PLAINTIFF; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s expert raised questions of fact about whether exposure to asbestos injured plaintiff: “In toxic tort cases, an expert opinion on causation must set forth (1) a plaintiff’s exposure to a toxin, (2) that the toxin is capable of causing the particular injuries plaintiff suffered ](general causation) and […]

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DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL AT THE SORA RISK-LEVEL ASSESSMENT PROCEEDING IN A CHILD PORNOGRAPHY CASE; COUNSEL MADE AN ARGUMENT WHICH WAS EXPRESSLY REJECTED BY THE COURT OF APPEALS AND THE 2ND DEPARTMENT (SECOND DEPT).

The Second Department determined defense counsel was ineffective the SORA risk-level assessment proceeding: The defendant was convicted, in federal court, of possession of child pornography … . After a hearing to determine his level of risk pursuant to the Sex Offender Registration Act … , at which the defendant was assessed 30 points under risk […]

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THERE WAS NO EVIDENCE DEFENDANT KNEW THE COMPLAINANT WAS A 14-YEAR-OLD RUNAWAY WHEN SHE STAYED AT HIS HOUSE; THE EVIDENCE OF KIDNAPPING WAS LEGALLY INSUFFICIENT (SECOND DEPT).

The Second Department, reversing defendant’s kidnapping conviction, determined the evidence was legally insufficient: “A person is guilty of kidnapping in the second degree when he or she] abducts another person” … . “‘Abduct’ means to restrain a person with intent to prevent his [or her] liberation by . . . (a) secreting or holding him […]

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