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Entries by Bruce Freeman

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THE STATE HAS NOT PREEMPTED A MUNICIPALITY’S ABILITY TO REGULATE THE PROCESSING OF WASTE; THEREFORE, EVEN THOUGH THE STATE HAD ISSUED A PERMIT ALLOWING THE PROCESSING OF 500 TONS OF WASTE PER DAY, THE VILLAGE’S ACTION FOR A PERMANENT INJUNCTION REDUCING THE ALLOWED AMOUNT OF WASTE SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the village’s request for a preliminary injunction limiting the amount of waste that could be processed by defendant recycling company was properly denied, but the action seeking a permanent injunction should not have been dismissed. The Department of Environmental Conservation (DEC) had issued a temporary emergency permit allowing […]

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A PARTY’S ADMISSION IN AN UNCERTIFIED POLICE REPORT IS NO LONGER ADMISSIBLE IN THE 2ND DEPARTMENT AND DECISIONS TO THE CONTRARY SHOULD NO LONGER BE FOLLOWED (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Connolly, reversing Supreme Court, noting prior decisions to the contrary should no longer be followed, determined a party’s hearsay admission in an uncertified police report is not admissible. Therefore, plaintiff’s motion for summary judgment in this rear-end collision case should not have been granted: At the […]

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EVIDENCE SUBMITTED IN PLAINTIFF BANK’S REPLY PAPERS PROPERLY CONSIDERED; THE BANK’S PROOF OF COMPLIANCE WITH THE NOTICE REQUIREMENTS OF THE MORTGAGE AGREEMENT WAS INSUFFICIENT; THE BANK’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’s reply papers were properly considered but plaintiff did not submit sufficient proof that a condition precedent in the mortgage agreement, re: notice of default, was complied with: … [T]he Supreme Court providently exercised its discretion in considering the affidavit of the plaintiff’s employee Jeremiah Herberg, which […]

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PLAINTIFF BANK DID NOT PRESENT SUFFICIENT EVIDENCE TO DEMONSTRATE IT TOOK ACTION TO ENTER A DEFAULT JUDGMENT IN THIS FORECLOSURE ACTION WITHIN ONE YEAR OF DEFENDANT’S DEFAULT; THE ACTION SHOULD HAVE BEEN DISMISSED AS ABANDONED PURSUANT TO CPLR 3215 (c) (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank did not present sufficient evidence that it commenced proceedings to enter a default judgment within one year of the default. Therefore the bank had abandoned the action: … [T]he plaintiff … relies upon two pages in the record. The first of those two pages is a […]

DEFENDANT DRIVER DID NOT DEMONSTRATE HE KEPT A PROPER LOOKOUT IN THIS VEHICLE-BICYCLE COLLISION CASE; THE PLAINTIFF BICYCLIST STRUCK THE REAR DRIVER’S SIDE DOOR WHEN DEFENDANT TURNED LEFT INTO A CAR WASH; DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion for summary judgment in this vehicle-bicycle collision case should not have been granted: The plaintiff commenced this action to recover damages for personal injuries he allegedly sustained when, while riding a bicycle, he came into contact with the rear driver’s side of a motor vehicle that […]

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A CAUSE OF ACTION MAY BE DISMISSED PURSUANT TO CPLR 3211 (a) (4) BECAUSE IT SEEKS THE SAME RELIEF AS A PENDING ACTION INVOLVING THE SAME PARTIES (SECOND DEPT).

The Second Department, reversing Supreme Court, determined a cause of action should have been dismissed pursuant CPLR 3211 (a) (4) because it involved the same parties and sought the same relief as a pending action. The actions involved common charges for condominiums: Pursuant to CPLR 3211(a)(4), a party may move to dismiss a cause of […]

A COMPONENT OF A TOWER CRANE WAS BEING HOISTED WHEN IT SWUNG TO THE SIDE AND PINNED PLAINTIFF; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON A LABOR LAW 241 (6) CAUSE OF ACTION SHOULD HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, determined plaintiff was entitled to summary judgment on a Labor Law 241(6) cause of action: The injured plaintiff allegedly was injured in the process of hoisting a component of the tower crane for assembly when the load, which had been stationary for several minutes, suddenly moved, swung to […]

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JUDGE’S SUA SPONTE DISMISSAL OF THE FORECLOSURE COMPLAINT WAS NOT WARRANTED; NO EXTRAORDINARY CIRCUMSTANCES (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank’s motion to vacate the sua sponte dismissal of the foreclosure complaint should have been granted: … [I]n a status conference order … , the Court Attorney Referee … directed the plaintiff to file an application seeking an order of reference by the date of the final […]

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MOTION TO DISMISS THE BREACH OF CONTRACT ACTION BASED ON DOCUMENTARY EVIDENCE PURSUANT TO CPLR 3211 (a)(1) SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant condominium-board-of-managers’ motion to dismiss plaintiff condominium-owner’s complaint based on documentary evidence should have been granted: The plaintiff commenced this action against the defendant Board of Managers … (hereinafter the Board) … challenging the Board’s allocation of common expenses, after the Condominium’s first year of operation, in […]

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DESPITE THE ALLEGATION THAT THE DRIVER HAD LOGGED OFF THE UBER APP PRIOR TO THE PEDESTRIAN-VEHICLE ACCIDENT, QUESTIONS OF FACT PRECLUDED SUMMARY JUDGMENT ON THE VICARIOUS LIABILITY THEORY; THE UNEMPLOYMENT INSURANCE APPEAL BOARD’S FINDING THAT THE DRIVER WAS EMPLOYED BY UBER WAS NOT ENTITLED TO PRECLUSIVE EFFECT; ISSUE NOT RAISED BELOW PROPERLY CONSIDERED ON APPEAL (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court in this pedestrian-vehicle accident case, determined: (1) a ruling by the Unemployment Insurance Appeal Board finding that defendant driver was an employee of defendant Uber was not entitled collateral-estoppel effect pursuant to Labor Law 623( 2); (2) although the Labor Law 623(2) argument was not raised below, it […]

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