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Entries by Bruce Freeman

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THE PETITIONER, A PROBATIONARY POLICE OFFICER CHALLENGING HIS TERMINATION, RAISED QUESTIONS OF FACT IN THIS ARTICLE 78 PROCEEDING; THEREFORE THE SUMMARY DETERMINATION PURSUANT TO CPLR 409 WAS NOT AVAILABLE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined this Article 78 proceeding reviewing the termination of a probationary police officer (Lake) involved questions of fact rendering a summary determination pursuant to CPLR 409(b) improper: Since Lake submitted sufficient evidence to raise a triable issue of fact as to whether the reasons put forth by the Town were […]

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MOTHER SHOULD HAVE BEEN ADVISED OF HER RIGHT TO COUNSEL IN THIS CUSTODY PROCEEDING (SECOND DEPT).

The Second Department, reversing Family Court, determined mother should have been advised of her right to counsel in this custody proceeding: “Family Court Act § 262 provides certain parties to particular Family Court proceedings with a statutory right to counsel. If the party in question falls within one of the enumerated subdivisions thereto, he or […]

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MOTHER’S PETITION TO MODIFY THE PARENTAL ACCESS SCHEDULE SHOULD NOT HAVE BEEN RULED ON WITHOUT HOLDING A HEARING, CRITERIA EXPLAINED (SECOND DEPT).

The Second Department, reversing Family Court, determined the judge should not have ruled in this custody proceeding without holding a hearing. Mother had filed a petition seeking modification of the parental access schedule: “Custody determinations . . . require a careful and comprehensive evaluation of the material facts and circumstances in order to permit the […]

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DEFENDANT INSURER DID NOT ELIMINATE ALL QUESTIONS OF FACT ABOUT WHETHER PLAINTIFFS (INSUREDS) VIOLATED THE COOPERATION CLAUSE IN THE POLICY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant insurer did not eliminate all questions of fact whether the plaintiffs (insureds) violated the cooperation clause in the policy: “An unexcused and willful refusal to comply with disclosure requirements in an insurance policy is a material breach of the cooperation clause and precludes recovery on a claim. […]

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THE REFEREE REPORT IN THIS FORECLOSURE ACTION RELIED ON HEARSAY AND THEREFORE SHOULD NOT HAVE BEEN CONFIRMED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the calculations made by the referee were based on hearsay and therefore the referee’s report in this foreclosure action should not have been confirmed: The calculations of the referee were based upon the affidavit of Veronika Steen, Assistant Vice President of the plaintiff’s successor-by-merger. Steen averred that she […]

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CAUSE OF ACTION ALLEGING THE STIPULATION OF SETTLEMENT IN THIS DIVORCE ACTION WAS UNCONSCIONABLE SHOULD HAVE BEEN DISMISSED, CRITERIA EXPLAINED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the cause of action alleging the stipulation of settlement in this divorce action was unconscionable should have been dismissed: … [W]e agree with the defendant that the Supreme Court should have granted that branch of her cross motion which was pursuant to CPLR 3211(a) to dismiss the […]

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DEFENDANT’S FEIGNED ISSUE OF FACT DID NOT RAISE A QUESTION OF FACT IN THE PEDESTRIAN TRAFFIC ACCIDENT CASE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant had raised a feigned issue which did not raise a question of fact in this pedestrian traffic accident case: The plaintiff established her prima facie entitlement to judgment as a matter of law on the issue of liability through her own affidavit, which demonstrated that she was […]

QUESTION OF FACT WHETHER DEFENDANT DRIVER ATTEMPTED TO MAKE A LEFT TURN WHEN PLAINTIFF’S DECEDENT WAS TOO CLOSE IN THE ON-COMING LANE (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined there was a question of fact whether defendant driver executed a left turn when plaintiff’s decedent, who apparently was being chased by police, was too close: “Vehicle and Traffic Law § 1141 provides that the ‘driver of a vehicle intending to turn to the left within an […]

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A CONTRACTOR ALLEGED TO HAVE WORKED ON THE AREA OF THE ROADWAY WHERE PLAINTIFF SLIPPED AND FELL AND THE MUNICIPALITY DID NOT ELIMINATE QUESTIONS OF FACT ABOUT THEIR LIABILITY; DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the municipality’s (Port Washington North’s) motion for summary judgment should not have been granted in this slip and fall case. The code provision requiring written notice of the dangerous condition applied to the village, not to Port Washington North, and Port Washington North did not demonstrate it did […]

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THE FORECLOSURE ACTION WAS TIME-BARRED; THE DISCONTINUANCE DID NOT DE-ACCELERATE THE DEBT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion for summary judgment in this foreclosure action should have been granted. The action was time-barred. The debt was accelerated when the foreclosure action was started and the discontinuance did not de-accelerate the debt: Plaintiff’s … contention—that the stipulation of discontinuance in the 2007 action revoked the […]

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