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Entries by Bruce Freeman

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PLAINTIFF BANK DID NOT DEMONSTRATE COMPLIANCE WITH RPAPL 1304 AND DID NOT DEMONSTRATE STANDING TO BRING THE FORECLOSURE ACTION; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (THIRD DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank did not demonstrate it met the notice requirements of Real Property Actions and Proceedings Law (RPAPL) 1304 and the bank did not demonstrate it had standing the bring the action: … [T]he plaintiff failed to submit an affidavit of mailing or proof of first-class mailing by […]

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THE JURY SHOULD HAVE BEEN INSTRUCTED ON THE JUSTIFICATION DEFENSE IN THIS ASSAULT AND RESISTING ARREST CASE; DEFENDANT KICKED AND FLAILED AS HE WAS SUBDUED BY MORE THAN EIGHT POLICE OFFICERS (FIRST DEPT).

The First Department, reversing defendant’s conviction, determined the jury should have been instructed on the justification defense: Defendant’s request to charge justification, with regard to his kicking and flailing as officers tried to subdue and arrest him, should have been granted … . Penal Law § 35.27 permits a defendant to claim justification where there […]

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DEFENSE COUNSEL WAS GIVEN NOTICE AND THE OPPORTUNITY TO BE HEARD BEFORE THE ISSUANCE OF THE WARRANT TO TAKE A DNA SAMPLE FROM THE DEFENDANT; DEFENSE COUNSEL WAS NOT ENTITLED TO DISCOVERY OF THE WARRANT APPLICATION PRIOR TO THE ISSUANCE OF THE WARRANT TO ASSESS PROBABLE CAUSE; A VIDEO DEPICTING DEFENDANT WAS PROPERLY AUTHENTICATED; APPELLATE DIVISION REVERSED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, over a concurrence and a two-judge dissent, reversing the Appellate Division, determined defendant was not entitled to review the application for the warrant to collect DNA evidence from the defendant’s person before the warrant was issued. Defense counsel was given notice and an opportunity to […]

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STRICT FORECLOSURE AT THE DIRECTION OF THE MAJORITY BONDHOLDERS WHICH CANCELLED THE NOTES PRECLUDED RECOVERY BY THE PLAINTIFFS WHO PURCHASED SOME OF THE NOTES IN THE SECONDARY MARKET (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Garcia, reversing the Appellate Division, over a three-judge dissent, determined the strict foreclosure at the direction of the majority bondholders which cancelled the notes precluded plaintiffs from recovering on notes purchased in the secondary market. The decision is fact-specific, dependent on the wording of documents, […]

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VETERINARY CLINIC MAY BE LIABLE IN NEGLIGENCE FOR INJURY CAUSED BY A DOG IN THE CLINIC’S WAITING ROOM, BUT THE CLINIC’S LIABILITY SHOULD NOT TURN ON WHETHER THE CLINIC WAS AWARE OF THE DOG’S VICIOUS PROPENSITIES, THE STRICT LIABILITY STANDARD IMPOSED ON DOG-OWNERS (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Garcia, over a two-judge concurrence, determined that the defendant veterinary clinic (Palmer) should not have been awarded summary judgment in this dog-bite case. As a veterinarian was returning a dog (Vanilla) which had just been treated to the dog’s owner in the waiting room the […]

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IN A VEHICULAR MANSLAUGHTER CASE, THE STANDARD OF PROOF OF IMPAIRMENT FROM MARIJUANA IS THE SAME AS THE STANDARD OF PROOF OF IMPAIRMENT FROM ALCOHOL (THIRD DEPT).

The Third Department, in a comprehensive opinion by Justice Lynch, affirmed defendant’s conviction stemming from a collision with a motorcycle at a time when defendant was impaired by marijuana (THC). The decision, which lays out the law of vehicular manslaughter, carefully goes through evidence of impairment and causation. The opinion is too detailed to be […]

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RESPONDENT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL IN THE JULY 2015 MENTAL HYGIENE ARTICLE 10 TRIAL; COUNSEL WAS INEFFECTIVE IN NOT REQUESTING A FRYE HEARING ON THE VALIDITY OF THE OSPD DIAGNOSIS; MATTER REMITTED FOR A FRYE HEARING BASED UPON WHAT WAS KNOWN ABOUT THE DIAGNOSIS AT THE TIME OF THE 2015 TRIAL (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Mulvey, remitting the matter for a Frye hearing, determined respondent was deprived of effective assistance of counsel in the July 2015 Mental Hygiene Article 10 trial because counsel did not request a Frye hearing on the validity of the “other specific paraphilic disorder (nonconsent)” (OSPD) diagnosis. […]

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THE 2008 FORECLOSURE COMPLAINT WAS SERVED ON A DECEASED DEFENDANT AND WAS THEREFORE A NULLITY WHICH DID NOT TRIGGER THE SIX-YEAR STATUTE OF LIMITATIONS; THE INSTANT FORECLOSURE ACTION, THEREFORE, IS NOT TIME-BARRED (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the foreclosure action was not time-barred. Although a foreclosure complaint was served in 2008, it named a deceased defendant and was therefore a nullity which did not accelerate the debt and start the statute of limitations running: Plaintiff contends that Supreme Court erred in dismissing the action as […]

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PLAINTIFF WAS ENTITLED TO THE REFORMATION OF THE INSURANCE POLICY TO NAME HIM AS MORTGAGEE; ALL PARTIES AGREED THEY INTENDED TO SO NAME THE PLAINTIFF AND THE FAILURE TO DO SO WAS THE RESULT OF A MISTAKE; PLAINTIFF WAS ENTITLED TO PAYMENT OF THE FIRE-DAMAGE PROCEEDS IRRESPECTIVE OF THE PROPERTY OWNER’S ACTS OR NEGLECT (THIRD DEPT).

The Third Department, reversing Supreme Court, determined plaintiff was entitled to the reformation of an insurance policy and to the payment of the fire-damage proceeds. Through error plaintiff was never named as the mortgagee on the policy: Plaintiff asserts that reformation of the property policy to name him as the mortgagee is appropriate because the […]

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