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Entries by Bruce Freeman

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CAUSES OF ACTION FOR UNJUST ENRICHMENT, BREACH OF FIDUCIARY DUTY AND AN ACCOUNTING SHOULD NOT HAVE BEEN DISMISSED; FAILURE TO TRANSFER ASSETS ALLEGED A CONTINUING WRONG AND PAYMENTS WHICH ALLEGEDLY SHOULD HAVE BEEN MADE DURING THE STATUTE OF LIMITATIONS PERIOD WERE ACTIONABLE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff stated causes of action for unjust enrichment, breach of fiduciary duty and an accounting against her sister (Weisel), the sole manager of A & Z, of which plaintiff is also a member. The court noted that the allegation that Weisel did not transfer assets to A & […]

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THE STIPULATION OF DISCONTINUANCE DID NOT DEMONSTRATE THE MORTGAGE DEBT WAS DE-ACCELERATED WITHIN THE SIX-YEAR STATUTE OF LIMITATIONS PERIOD IN THIS FORECLOSURE ACTION; THE BANK’S MOTION FOR SUMMARY JUDGMENT WAS PROPERLY DENIED (SECOND DEPT).

The Second Department determined plaintiff bank did not prove the debt had been de-accelerated and therefore did not demonstrate the foreclosure action was not time-barred. It was not demonstrated that the stipulation of discontinuance affirmatively revoked the initial acceleration of the debt: “A lender may revoke its election to accelerate the mortgage, but it must […]

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THE CAUSE OF ACTION SEEKING THE IMPOSITION OF A CONSTRUCTIVE TRUST TO PREVENT UNJUST ENRICHMENT SHOULD NOT HAVE BEEN DISMISSED; PLAINTIFF WIFE ENTERED A SETTLEMENT AGREEMENT REQUIRING PAYMENTS BY HER EX-HUSBAND; AFTER HER EX-HUSBAND’S DEATH HIS CHILDREN ALLEGEDLY EMPTIED THE ESTATE OF ASSETS, THEREBY PREVENTING THE FULFILLMENT OF THE TERMS OF THE SETTLEMENT AGREEMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the cause of action alleging the existence of a constructive trust to prevent unjust enrichment should not have been dismissed. Plaintiff and her deceased ex-husband entered a settlement agreement in which plaintiff would be entitled to certain payments until 2020 and 2023. Plaintiff’s ex-husband died in 2017 and […]

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PLAINTIFF BANK DID NOT LAY A SUFFICIENT FOUNDATION FOR BUSINESS RECORDS SUBMITTED TO PROVE COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 1304 (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank’s motion for summary judgment in this foreclosure action should not have been granted because the evidence of compliance with the notice requirements of Real Property Actions and Proceedings Law (RPAPL) 1304 was insufficient: The plaintiff in this mortgage foreclosure action, on its motion, inter alia, for […]

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THE MOTION TO DISMISS THE BREACH OF CONTRACT CAUSE OF ACTION BASED ON DOCUMENTARY EVIDENCE DID NOT ESTABLISH A DEFENSE AS A MATTER OF LAW (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion to dismiss the breach of contract cause of action should not have been granted: … [T]he plaintiff stated a cause of action, in effect, to recover damages for breach of contract based on an alleged breach of the implied covenant of good faith and fair dealing […]

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CLAIMANTS’ MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN THIS MEDICAL MALPRACTICE ACTION SHOULD HAVE BEEN GRANTED PRIMARILY BECAUSE THE MEDICAL RECORDS PROVIDED THE STATE WITH TIMELY KNOWLEDGE OF THE NATURE OF THE CLAIM (SECOND DEPT).

The Second Department, reversing the Court of Claims, determined claimants’ motion for leave to file a late notice of claim pursuant to Court of Claims Act 10(6) in this medical malpractice action should have been granted, primarily because the state had timely knowledge of the nature of the claim and was not prejudiced by the […]

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DEFENDANTS’ MOTION TO DISMISS CLAIMS NOT INCLUDED IN THE NOTICE OF CLAIM PROPERLY GRANTED; MOTION TO AMEND THE NOTICE OF CLAIM AND MOTION FOR LEAVE TO FILE A LATE NOTICE PROPERLY DENIED; JUDGE SHOULD NOT HAVE, SUA SPONTE, DISMISSED THE CLAIM FOR LOSS OF SERVICES BECAUSE THAT RELIEF WAS NOT REQUESTED (SECOND DEPT).

The Second Department determined defendants’ motion to dismiss claims that were not in the notice of claim was properly granted, and plaintiffs’ motions to amend the notice of claim and for leave to file a late notice of claim were properly denied. The Second Department noted that the loss of services claim should not have […]

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THE ONLY WAY TO COMPEL A JUDGE TO SIGN A DOCUMENT TO CREATE AN APPEALABLE PAPER IS A MANDAMUS ACTION PURSUANT TO ARTICLE 78; THE FAILURE TO BRING THE ARTICLE 78 PROCEEDING PRECLUDED APPEAL IN THIS CASE; THE OPINION INCLUDES A COMPREHENSIVE EXPLANATION OF WHAT THE REQUIREMENTS OF AN APPEALABLE PAPER ARE AND SHOULD BE CONSIDERED DEFINITIVE ON THE TOPIC (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Dillon, over a concurrence, determined the plaintiffs’ only option when the judge refused to sign the transcript of the oral decision (CPLR 2219) and, in the alternative, refused to sign the proposed order with notice of settlement (22 NYCRR 202.48[a]), was a mandamus proceeding to compel the […]

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DEFENDANTS’ FAILURE TO SERVE A CONFERENCE SCHEDULING ORDER ON PLAINTIFFS, WHICH APPARENTLY RESULTED IN THE PLAINTIFFS NOT ATTENDING THE CONFERENCE, DID NOT JUSTIFY THE DISMISSAL OF DEFENDANTS’ FULLY SUBMITTED SUMMARY JUDGMENT MOTION WHICH MUST BE DECIDED ON THE MERITS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the judge should not have dismissed defendants’ summary judgment motion in this car accident case because defendants apparently did not serve an order scheduling a conference on the plaintiffs. Apparently the defendants appeared at the conference but the plaintiffs did not: 22 NYCRR 202.27 governs what a court […]

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THE DEFENDANT BANK’S MOTION FOR SUMMARY JUDGMENT IN PLAINTIFF’S ACTION TO CANCEL AND DISCHARGE A MORTGAGE SHOULD HAVE BEEN GRANTED; THE BANK PROVED THE DE-ACCELERATION NOTICE WAS PROPERLY TRANSMITTED TO PLAINTIFF, RENDERING THE UNDERLYING FORECLOSURE ACTION TIMELY (SECOND DEPT).

The Second Department, reversing Supreme Court in plaintiff’s action to discharge and cancel a mortgage pursuant to RPAPL 1501 (4), determined defendant bank demonstrated that the de-acceleration notice were properly transmitted to plaintiff, rendering the defendant bank’s underlying foreclosure action timely: Wells Fargo’s vice president of loan documentation averred that she was familiar with the mailing […]

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