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Entries by Bruce Freeman

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THE MANAGER OF PLAINTIFF BAR PUSHED A MAN DOWN A SET OF STAIRS CAUSING FATAL INJURIES; THE ASSAULT AND BATTERY EXCLUSION IN DEFENDANT’S INSURANCE POLICY APPLIED AND THE INSURER WAS NOT OBLIGATED TO DEFEND THE BAR (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the assault and battery insurance policy exclusion applied and the insurer was not obligated to defend the plaintiff in the underlying personal injury action. The manager at plaintiff bar had pushed a man down a set of stairs, causing fatal injuries. The manager pled guilty to manslaughter: Generally, […]

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THE VILLAGE DID NOT DEMONSTRATE INFANT PLAINTIFF ASSUMED THE RISK OF INJURY FROM A TIRE SWING IN THE VILLAGE PLAYGROUND; THE VILLAGE’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the village did not demonstrate infant plaintiff assumed the risk of injury from a tire swing in a village playground. Apparently the swing struck a railing causing infant plaintiff’s leg to slip out from under him and his leg struck a support post: … [T]he Village failed to […]

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CANCELLATION AND DISCHARGE OF A MORTGAGE PURSUANT TO RPAPL 1501 (4) MUST BE SOUGHT BY AN ACTION OR COUNTERCLAIM, NOT BY A MOTION (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the motion to cancel and discharge the mortgage pursuant to RPAPL 1501 (4) should not have been granted. That relief must be sought by an action or counterclaim: Supreme Court should not have granted that branch of the motion which was to cancel and discharge the mortgage […]

A MOTION TO DISMISS AN ACTION FOR A DECLARATORY JUDGMENT FOR FAILURE TO STATE A CAUSE OF ACTION, WHERE THERE ARE NO QUESTIONS OF FACT, SHOULD BE TREATED AS A MOTION FOR A DECLARATION IN DEFENDANT’S FAVOR (SECOND DEPT).

The Second Department noted that where a motion to dismiss an action for declaratory judgment is made, the motion should be deemed a request for a declaration in defendant’s favor: The courts may consider “the merits of a properly pleaded cause of action for a declaratory judgment upon a motion to dismiss for failure to […]

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THE REFEREE’S REPORT IN THIS FORECLOSURE ACTION SHOULD NOT HAVE BEEN CONFIRMED; THE REFEREE RELIED ON HEARSAY AND FAILED TO CONDUCT A HEARING ON NOTICE AS REQUIRED BY THE CPLR (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the referee’s report should not have been confirmed.  The evidence of default presented to the referee was hearsay and the referee did not hold a hearing on notice as required by CPLR 4320: … [W]ith respect to the amount due to the plaintiff, the referee based his findings […]

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PLAINTIFF BANK FAILED TO SHOW COMPLIANCE WITH THE NOTICE PROVISIONS OF THE MORTGAGE AGREEMENT AND RPAPL 1304; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank failed to demonstrate the notice of default was provided in accordance with the mortgage agreement, failed to demonstrate compliance with the notice requirements of RPAPL 1304 and failed to demonstrate such compliance was not required: … [T]he plaintiff failed to demonstrate, prima facie, that it complied […]

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SOME RESTRICTIONS ON DISCLOSURE SHOULD HAVE BEEN IMPOSED BY COUNTY COURT (SECOND DEPT).

The Second Department, reversing County Court, determined some restrictions on making discovery available to the defense should have been imposed: Applying the factors set forth in CPL 245.70(4), including the concerns for witness safety and protection, I conclude that the County Court improvidently exercised its discretion in denying the People’s request in its entirety. Under […]

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DEFENDANT’S MOTION TO VACATE HIS 1999 MURDER CONVICTION BASED UPON THE PROSECUTION’S FAILURE TO TURN OVER BRADY MATERIAL PROPERLY GRANTED (SECOND DEPT).

The Second Department determined defendant’s motion to vacate his 1999 murder conviction based upon the prosecution’s failure to turn over Brady material regarding a prosecution witness (Corti) was properly granted: The People are obligated to disclose exculpatory evidence in their possession which is favorable to the defendant and material to the issues of guilt or […]

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DEFENDANT’S MOTION TO VACATE HIS CONVICTION OF A 1996 MURDER BASED UPON NEWLY DISCOVERED EVIDENCE OF THIRD-PARTY CULPABILITY PROPERLY GRANTED (SECOND DEPT).

The Second Department determined County Court properly granted defendant’s motion to vacate his conviction stemming from a 1996 murder, despite defendant’s confession, based upon evidence of third-party culpability, i.e., statements allegedly made by Gombert to Santoro about Gombert’s involvement in the crime: … [W]e find that the newly discovered evidence “is of such character as to […]

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SUPREME COURT SHOULD NOT HAVE REQUIRED DEFENSE COUNSEL TO SEEK COURT APPROVAL BEFORE ALLOWING INVESTIGATORS OR OTHER EMPLOYEES ACCESS TO RECORDINGS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined Supreme Court should not have required that defense counsel seek court approval before allowing investigators or other employees access to recordings: Pursuant to CPL 245.70(6), a party who has unsuccessfully sought, or opposed the granting of, a protective order relating to the name, address, contact information, or statements […]

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