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Entries by Bruce Freeman

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PLAINTIFF WAS A THIRD-PARTY BENEFICIARY OF THE CONTRACT WITH THE ARCHITECTS; THEREFORE THE ARCHITECTURAL MALPRACTICE ACTION ACCRUED WHEN THE CONSTRUCTION WAS COMPLETE, RENDERING THE ACTION TIME-BARRED (FOURTH DEPT).

The Fourth Department determined the architectural malpractice action accrued when the construction was complete, despite the fact that plaintiff was not a party to the contract with the architects. Therefore the action was time-barred. The court noted that Supreme Court should have settled the record on appeal by including the transcript of the motion to […]

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THE POLICE DID NOT HAVE REASONABLE SUSPICION TO JUSTIFY THE TRAFFIC STOP AND DID NOT HAVE PROBABLE CAUSE TO ARREST AT THE TIME DEFENDANT GOT OUT OF THE CAR; THE STATEMENTS MADE BY DEFENDANT AND THE COCAINE SEIZED FROM HIS PERSON SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT).

The Fourth Department, reversing the convictions related to statement which should have been suppressed, determined the police did not have reasonable suspicion to justify a traffic stop and did not have probable to handcuff the defendant, a de facto arrest, when he got out of the car. Therefore the statements which led to the search and […]

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THE MERE PRESENCE OF A REINSTATEMENT CLAUSE IN THE MORTGAGE, WHICH ESSENTIALLY ALLOWS A BORROWER IN DEFAULT TO PAY THE ARREARS AND STOP THE ACCELERATION OF THE DEBT, DOES NOT AFFECT OR IMPEDE THE ACCELERATION OF THE DEBT WHEN A FORECLOSURE ACTION IS STARTED; THE DEBT HERE WAS ACCELERATED WHEN THE FIRST FORECLOSURE ACTION WAS COMMENCED IN 2009 RENDERING THE INSTANT FORECLOSURE ACTION TIME-BARRED (FOURTH DEPT).

The Fourth Department, in a full-fledged opinion by Justice Curran, agreeing with the Second Department, determined the mere presence of reinstatement clause in a mortgage, which allows a borrower who has missed payments to pay the amount of the missed payments and resume monthly payments, does not affect or impede the acceleration of the debt […]

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DEFENDANT ENTITLED TO A HEARING ON HIS MOTION TO VACATE HIS CONVICTION ON THE GROUND DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO INFORM HIM THE DECISION WHETHER TO TESTIFY WAS HIS TO MAKE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined a hearing was required on defendant motion to vacate his conviction alleging defense counsel was ineffective for failing to inform him the decision whether to testify was defendant’s to make: … [T]he court erred in denying his motion without a hearing with respect to whether defense counsel fulfilled […]

QUESTION OF FACT WHETHER DEFENDANT’S ACTIONS WERE JUSTIFIED BY THE EMERGENCY DOCTRINE IN THIS AUTOMOBILE ACCIDENT CASE; THE DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the defendant’s motion for summary judgment pursuant to the emergency doctrine should not have been granted in this automobile accident case: A white van that was exiting the Parkway proceeded to the stop sign where the off-ramp intersects with Greenleaf Road and then made a sudden left-hand turn […]

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THE APPEAL WAS HELD IN ABEYANCE AND THE MATTER WAS SENT BACK FOR A RECONSTRUCTION HEARING ON WHETHER DEFENSE COUNSEL CONSENTED TO ANNOTATIONS ON THE VERDICT SHEET; THE RECONSTRUCTION HEARING WAS HELD BUT SUPREME COURT DID NOT MAKE A RULING; THE MATTER WAS REMITTED AGAIN FOR THE RULING (FOURTH DEPT). ​

The Fourth Department, holding the appeal in abeyance, had sent the matter back for a reconstruction hearing on whether defense counsel consented to annotations on the verdict sheet. The hearing was held but Supreme Court did not make a ruling. So the matter was remitted for that purpose: We previously held this case, reserved decision, […]

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WAIVER OF APPEAL OF THE UNDERLYING PLEA DOES NOT PROHIBIT APPEAL OF THE SENTENCE FOR A SUBSEQUENT VIOLATION OF PROBATION; NO PRESERVATION REQUIREMENT; APPELLATE COURT HAS POWER TO MODIFY A LEGAL SENTENCE (FOURTH DEPT).

The Fourth Department, reducing defendant’s sentence, noted that a waiver of appeal at the underlying plea proceeding did not prohibit the appeal of the severity of the sentence for a subsequent violation of probation. The court further noted there is no preservation requirement for the appeal of an excessive sentence: … [E]ven if defendant executed a valid […]

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DEFAMATION CAUSE OF ACTION AGAINST DEFENDANT AND HIS EMPLOYER, UNDER A RESPONDEAT SUPERIOR THEORY, SHOULD NOT HAVE BEEN DISMISSED (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined the defamation cause of action against defendant Polit and Polit’s employer, ADP, should not have been dismissed. Polit allegedly posted defamatory statements on defendant-restaurant’s Facebook page on behalf of Polit’s employer: Plaintiffs commenced this action seeking damages arising from an allegedly defamatory statement authored by defendant David […]

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ALTHOUGH THE DISMISSAL OF THE COMPLAINT IN THIS TRAFFIC ACCIDENT CASE INVOLVING A LIMOUSINE BUS WAS REVERSED ON APPEAL, PLAINTIFFS DID NOT ADDRESS ON APPEAL THE ASPECT OF THE DECISION WHICH DISMISSED THE FAILURE-TO-PROVIDE-SEATBELTS CAUSE OF ACTION; THEREFORE ANY CHALLENGE TO THAT ASPECT OF THE DISMISSAL WAS ABANDONED BY PLAINTIFFS (FOURTH DEPT).

The Fourth Department, reversing Supreme Court’s dismissal of the complaint in this traffic accident case, noted that the plaintiffs’ failure to address an aspect of the decision granting defendants’ motion for summary judgment constituted an abandonment of any challenge to that portion of the decision. The motion court had dismissed the complaint in its entirety including […]

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PETITIONERS WERE NOT REQUIRED TO OBTAIN A USE VARIANCE BEFORE APPLYING FOR A SPECIAL PERMIT TO OPERATE THEIR RESIDENCE AS AN AIRBNB, SUPREME COURT REVERSED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the Zoning Board of Appeals’ (ZBA’s) ruling that petitioners would have to obtain a use variance before applying for a special use permit to operate their residence as an Airbnb rental lacked a rational basis: Town Code § 280-31 provides that the uses and structures permitted in the […]

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