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Entries by Bruce Freeman

IN A COMPLEX MARITAL-PROPERTY, MAINTENANCE AND CHILD-SUPPORT ANALYSIS TOO DETAILED AND COMPREHENSIVE TO SUMMARIZE HERE, THE COURT NOTED THAT, ABSENT A VOLUNTARY AGREEMENT, A PARENT MAY NOT BE DIRECTED TO SUPPORT A CHILD AFTER THE AGE OF 21 (SECOND DEPT).

The Second Department, in an extensive marital-property, maintenance and child-support decision too detailed and comprehensive to fairly summarize here, noted that a parent is not obligated to support a child over the age of 21: The defendant … contends that the Supreme Court improperly directed him to pay basic child-support and add-on expenses for the […]

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THE POLICE ACTED ILLEGALLY IN DIRECTING DEFENDANT TO GET OUT OF HIS VEHICLE; HOWEVER THE DEFENDANT’S SUBSEQUENT INDEPENDENT ACT OF RUNNING OVER THE POLICE OFFICER DISSIPATED THE ILLEGALITY OF THE POLICE CONDUCT; THEREFORE DEFENDANT’S MOTION TO SUPPRESS CERTAIN TESTIMONY ABOUT THE ENCOUNTER WITH THE POLICE WAS PROPERLY DENIED (SECOND DEPT).

The Second Department determined defendant’s motion to suppress testimony about an encounter with police was properly denied. Although the police acted illegally in directing defendant to get out of his car and in trying to physically remove defendant from his car, the subsequent criminal act by the defendant, running over the police officer, dissipated the […]

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THE USUAL STRICT CRITERIA FOR VACATING A DEFAULT ORDER ARE RELAXED IN CHILD CUSTODY PROCEEDINGS; MOTHER’S MOTION TO VACATE THE DEFAULT ORDER AWARDING CUSTODY TO FATHER SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Family Court, determined mother’s motion to vacate the default order granting custody to father should have been granted. The usual strict criteria for a default order are relaxed in child custody matters: The determination of whether to relieve a party of an order entered upon his or her default is a […]

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NEW YORK DID NOT HAVE JURISDICTION OVER THE FLORIDA CHILD SUPPORT ORDER, EVEN THOUGH FATHER’S CHILD SUPPORT OBLIGATION HAD TERMINATED BY THE TERMS OF THE ORDER (SECOND DEPT).

The Second Department, reversing Family Court, determined Florida, which issued the child support order and where father resides, continued to have jurisdiction over the child support order, even though the child support obligation had terminated. Therefore the New York child support order was not a “de novo” order. Rather, it was a modification of the […]

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FATHER’S MOTION TO VACATE THE DEFAULT ORDER TERMINATING HIS PARENTAL RIGHTS SHOULD HAVE BEEN GRANTED; FATHER ATTEMPTED TO ATTEND THE HEARING, BUT WAS LATE; FATHER WAS ENTITLED TO COUNSEL BUT NONE HAD BEEN ASSIGNED; AND THERE WAS EVIDENCE HE DID NOT ABANDON THE CHILD (SECOND DEPT).

The Second Department, reversing Family Court, determined father’s motion to vacate the default order terminating his parental rights should have been granted. Father had appeared on the day of the hearing but it had concluded. In addition father was entitled to counsel and there was evidence father had not abandoned the child: A parent seeking […]

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FAMILY COURT SHOULD HAVE MADE FINDINGS WHICH WOULD ALLOW THE CHILD TO APPLY FOR SPECIAL IMMIGRANT JUVENILE STATUS (SECOND DEPT).

The Second Department, reversing Family Court, determined the court should have made findings which would allow the subject child to apply for special immigrant juvenile states (SIJS); The Family Court erred in failing to make the specific finding that reunification with the father is not viable due to abandonment. Based upon our independent factual review, […]

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DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON THE MEDICAL MALPRACTICE AND LACK OF INFORMED CONSENT CAUSES OF ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants should not have been awarded summary judgment on the medical malpractice and lack of informed consent causes of action: The affidavit of the defendants’ expert failed to address and rebut the specific allegations of malpractice set forth in the complaint and bill of particulars … , and […]

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PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS REAR-END COLLISION CASE SHOULD HAVE BEEN GRANTED; THE ISSUE OF PLAINTIFF’S COMPARATIVE NEGLIGENCE CAN BE ADDRESSED AT THE SUMMARY JUDGMENT STAGE IF RAISED AS AN AFFIRMATIVE DEFENSE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment in this rear-end collision case should have been granted. The court noted that the issue of plaintiff’s comparative negligence can be considered at the summary judgment stage if raised as an affirmative defense: A rear-end collision with a stopped or stopping vehicle establishes […]

INCONSEQUENTIAL VIOLATIONS OF THE ELECTION LAW DID NOT INVALIDATE THE DESIGNATING PETITION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the inclusion of extraneous district numbers under the names of the candidates did not invalidate the designating petition: Election Law § 6-134, setting forth rules for designating petitions, states that its provisions “shall be liberally construed, not inconsistent with substantial compliance thereto and the prevention of fraud” … […]

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

The Second Department, reversing Supreme Court, determined the plaintiff bank did not demonstrate compliance with the notice requirements of RPAPL 1304 and the mortgage. Therefore the bank’s motion for summary judgment in this foreclosure action should not have been granted: … [T]he plaintiff failed to submit proof of the actual mailings, such as the affidavits […]

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