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Entries by Bruce Freeman

THE LATE SUMMARY JUDGMENT MOTION AND THE EXCUSE OFFERED IN REPLY PAPERS SHOULD NOT HAVE BEEN CONSIDERED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the late summary judgment motion and an excuse offered in reply papers should not have been considered: Pursuant to CPLR 3212, courts have “considerable discretion to fix a deadline for filing summary judgment motions,” so long as the deadline is not “earlier than 30 days after filing the […]

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THE REFEREE RELIED ON HEARSAY TO DETERMINE THE AMOUNT OWED IN THIS FORECLOSURE ACTION; SUPREME COURT SHOULD NOT HAVE CONFIRMED THE REFEREE’S REPORT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the evidence relied upon by the referee to determine the amount owed to plaintiff bank in this foreclosure action did not meet the requirements of the business records exception to the hearsay rule. The bank’s motion for summary judgment should not have been granted: With respect to the […]

AFTER OBTAINING AN UNPAID JUDGMENT AGAINST THE INSURED, PLAINTIFF PROPERLY SUED THE INSURER WHICH HAD DISCLAIMED COVERAGE ALLEGING THE INSURED HAD REFUSED TO COOPERATE; THE PROOF OF THE INSURED’S ALLEGED FAILURE TO COOPERATE WAS NOT SUFFICIENT TO RAISE A QUESTION OF FACT; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AGAINST THE INSURER WAS PROPERLY GRANTED (SECOND DEPT).

The Second Department, in a comprehensive decision explaining the law, determined plaintiff properly sued the defendant’s insurer after obtaining an unpaid judgment against the insured. The insurer argued it had properly disclaimed coverage because the insured did not cooperate by answering questions. However, the insurer’s submissions did not demonstrate the insured’s failure to cooperate and […]

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THE BANK DID NOT SUBMIT SUFFICIENT EVIDENCE OF STANDING OR COMPLIANCE WITHE THE RPAPL 1304 NOTICE REQUIREMENTS IN THIS FORECLOSURE ACTION; THE BANKS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank did not present sufficient evidence of standing to bring the foreclosure action and compliance with the RPAPL 1304 notice requirements: … [T]he plaintiff failed to establish, prima facie, that it had standing to commence this action. Although the employee of the plaintiff’s loan servicer stated in […]

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PLAINTIFF HOMEOWNERS’ ACTION AGAINST THE INSURER FOR BREACH OF CONTRACT, FRAUD AND NEGLIGENCE SHOULD HAVE BEEN DISMISSED; PLAINTIFF ACKNOWLEDGED THE HOME WAS VACANT WHEN THE POLICY WAS PURCHASED AND AT THE TIME OF THE FIRE AND THE POLICY EXCLUDED COVERAGE FOR VACANT PROPERTY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the insurer’s motion for summary judgment in this “disclaimed coverage” case should have been granted. Plaintiff homeowner acknowledged the home had been vacant and was vacant at the time of the fire. Plaintiff’s allegation that the insurance agent was aware the house was vacant when the policy was […]

SALARIES OF UNDERCOVER POLICE OFFICERS NOT SUBJECT TO DISCLOSURE PURSUANT TO A FREEDOM OF INFORMATION LAW REQUEST (FIRST DEPT).

he First Department, reversing (modifying) Supreme Court, determined the salary of undercover police officers should not be disclosed: FOIL provides that “[n]othing in [the statute] shall be construed to require any entity to prepare any record not possessed or maintained by such entity” (Public Officers Law § 89[3][a]), with exceptions not raised here. Accordingly, respondent […]

COUNTY COURT’S ORDER MODIFIED TO ALLOW WITHHOLDING THE NAMES OF THE CONFIDENTIAL INFORMANT AND UNDERCOVER OFFICERS UNTIL TRIAL AND RESTRICTING ACCESS TO THE AUDIO AND VIDEO RECORDINGS OF THE NARCOTICS SALES (SECOND DEPT).

The Second Department, reversing (modifying) County Court, determined the name of the confidential informant can be withheld until trial, the names of the undercover officers can be withheld until trial, and audio and video recordings of the narcotics sales can only be shown to defense counsel at the prosecutor’s office: … [T]he order is modified by […]

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ALTHOUGH COUNSEL’S FAILURE TO IDENTIFY THE PROPER PARTY TO SUE WAS ARGUABLY NOT EXCUSABLE, THE DEFENDANT HAD TIMELY KNOWLEDGE OF THE NATURE OF THE ACTION AND WAS NOT PREJUDICED BY THE DELAY; THE APPLICATION TO FILE A LATE NOTICE OF CLAIM IN THIS SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined petitioner’s application to file a late notice of claim in this slip and fall case should have been granted. Although the excuse for not filing on time was not a good one, counsel’s failure to identify the proper party to sue, the defendant had timely knowledge of the […]

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THERE WAS A QUESTION OF FACT WHETHER DEFENDANT HAD CONSTRUCTIVE KNOWLEDGE OF A RECURRING ICY CONDITION IN THIS SLIP AND FALL CASE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined there was a question of fact whether defendant had constructive knowledge of a recurring icy condition where plaintiff allegedly slipped and fell. Plaintiff slipped after leaving a tenant’s apartment. The tenant testified at a deposition: … [P]laintiff submitted, inter alia, the deposition testimony of the tenant that she […]

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