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Entries by Bruce Freeman

KESHA, A RECORDING ARTIST, MADE PUBLIC STATEMENTS THAT HER MUSIC PRODUCER, GOTTWALD, HAD DRUGGED AND SEXUALLY ABUSED HER; GOTTWALD WAS PROPERLY AWARDED SUMMARY JUDGMENT IN HIS DEFAMATION ACTION; GOTTWALD DID NOT HAVE TO PROVE MALICE BECAUSE HE WAS NOT A GENERAL-PURPOSE OR LIMITED-PURPOSE PUBLIC FIGURE; TWO DISSENTERS DISAGREED (FIRST DEPT).

The Second Department, over a two-justice dissent, determined plaintiff music producer, Gottwald, was entitled to summary judgment on his defamation action against Kesha, a recording artist with whom Gottwald had entered a contract. Gottwald alleged Kesha falsely claimed Gottwald had drugged and sexually abused her in an effort to force Gattwald to release her from […]

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IT IS NOT CLEAR FROM THE CONTRACT WHETHER DEFENDANT TRUSTEE WAS TO PERFORM A MERELY MINISTERIAL FUNCTION OR A GATEWAY FUNCTION IN ACCEPTING ASSETS FOR THE TRUST FROM A NONPARTY WHICH WAS ACTING FRAUDULENTLY; THERE ARE QUESTIONS OF FACT ABOUT WHETHER THE DAMAGES ASSOCIATED WITH ACCEPTING NON-NEGOTIABLE ASSETS WERE DIRECT OR INDIRECT AND WHETHER A FIDUCIARY DUTY WAS BREACHED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Mazzarelli, reversing Supreme Court, determined the breach of contract, breach of fiduciary duty action against defendant trustee, Wilmington, should not have been dismissed. Wilmington acted as a trustee for assets transferred to the trust by a nonparty. The contract stated Wilmington would be responsible only for […]

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ALTHOUGH THE MOLINEUX EVIDENCE OF TWO PRIOR BURGLARIES WAS RELEVANT TO THE DEFENDANT’S INTENT TO BURGLARIZE THE BUILDING IN WHICH HE WAS FOUND BY THE POLICE, THE EXTENSIVE, DETAILED EVIDENCE OF THE PRIOR BURGLARIES RENDERED THE EVIDENCE TOO PREJUDICIAL, CONVICTION REVERSED (FIRST DEPT).

The First Department, reversing defendant’s attempted burglary conviction, determined the Molineux evidence of two prior burglaries to demonstrate intent, although admissible in principle, was too extensive and detailed to the extent its probative value was outweighed by its prejudicial effect. Defendant was seen by a tenant in a private area where the apartment fire escapes […]

THE EVIDENCE THAT THE PATERNAL UNCLE STRUCK THE CHILD ON THE ARM AFTER SHE MADE FUN OF AN ADULT IN THE HOUSEHOLD WAS NOT SUFFICIENT TO SUPPORT THE NEGLECT AND DERIVATIVE NEGLECT FINDINGS (SECOND DEPT).

The Second Department, reversing Family Court, determined the evidence the child’s paternal uncle struck the child on the arm after the child had made fun of another adult in the household did not support a neglect and derivative neglect finding. (The paternal uncle denied striking the child): While those legally responsible for the care of […]

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PLAINTIFF RAISED A QUESTION OF FACT WHETHER THE POLICE OFFICER WHO COLLIDED WITH HER CAR WAS ENGAGED IN AN EMERGENCY OPERATION AT THE TIME OF THE ACCIDENT; THEREFORE THE ORDINARY NEGLIGENCE CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff had raised a question of fact whether defendant police officer, Breen, was in fact involved in an emergency operation at the time she collided with the car in which plaintiff was a passenger. Therefore there was a question of fact whether the ordinary negligence principles, as opposed […]

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THE CHILDREN DO NOT HAVE STANDING TO PARTICIPATE IN LITIGATION REGARDING THEIR PARENTS’ PRENUPTIAL AGREEMENT; THEREFORE THE ATTORNEY FOR THE CHILD DID NOT HAVE THE AUTHORITY TO MAKE A MOTION CONCERNING THE PRENUPTIAL AGREEMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the children did not have standing to participate in the litigation of financial matters of their parents’ divorce, including the litigation concerning whether the prenuptial agreement should be set aside. Therefore the attorney for the child (AFC) did not have the authority to make a motion regarding the […]

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PLAINTIFF IN THIS DIVORCE ACTION WAS ENTITLED TO A NEW HEARING ON WHETHER THE PRENUPTIAL AGREEMENT SHOULD BE SET ASIDE; THE COURT NOTED THAT A CONTRACT WHICH MAY NOT BE UNCONSCIONABLE WHEN ENTERED MAY BECOME UNCONSCIONABLE WHEN FINAL JUDGMENT IS ENTERED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff was entitled to a new hearing on whether the prenuptial agreement was unconscionable. In the agreement, each party waived maintenance, equitable distribution and attorney’s fees. At the time the agreement was entered plaintiff was making $75 to $80,000 per year. At the time of the divorce plaintiff […]

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PLAINTIFF BROUGHT A PERSONAL INJURY ACTION AFTER FILING FOR BANKRUPTCY AND BEFORE THE BANKRUPTCY ESTATE WAS FULLY ADMINISTERED BUT DID NOT DISCLOSE THE CAUSE OF ACTION IN THE BANKRUPTCY PROCEEDING; DEFENDANT WAS ENTITLED TO ASSERT THE JUDICIAL ESTOPPEL DEFENSE IN AN AMENDED ANSWER AND TO SUMMARY JUDGMENT DISMISSING THE COMPLAINT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant in a personal injury action should have been allowed to amend its answer to assert judicial estoppel and should have been granted summary judgment on the ground the plaintiff did not disclose the cause of action in the bankruptcy proceeding: On July 6, 2012, the plaintiff filed […]

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THE POLICE OFFICERS’ DECIDING NOT TO ARREST PLAINTIFF’S DECEDENT’S SON AFTER AN ALTERCATION BETWEEN HER AND HER SON WAS AN EXERCISE OF DISCRETION PROTECTED BY GOVERNMENTAL IMMUNITY; THEREFORE THE CITY WAS NOT LIABLE FOR THE SUBSEQUENT ATTACK BY HER SON RESULTING IN THE DEATH OF PLAINTIFF’S DECEDENT (SECOND DEPT).

The Second Department, reversing Supreme Court in this third-party assault case, determined the city could not be held liable for the injury and death of plaintiff’s decedent at the hands of her son. The police had been called to plaintiff’s decedent’s home because of an altercation between her and her son, Matthew. The police did […]

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PLAINTIFF BANK DID NOT DEMONSTRATE STANDING TO BRING THE FORECLOSURE ACTION; THE REQUIRED BUSINESS RECORDS WERE NOT SUBMITTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank failed to demonstrate standing to bring the foreclosure action with admissible evidence: Although the plaintiff can establish standing by attaching the blank-endorsed note to the complaint when commencing the action … here, the record demonstrates that the plaintiff only attached the mortgage to the complaint. Moreover, […]

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