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Entries by Bruce Freeman

DEFENDANT SHOULD HAVE BEEN ALLOWED TO MAKE A PERSONAL STATEMENT BEFORE RESENTENCING, RESENTENCE REVERSED (SECOND DEPT).

The Second Department, reversing defendant’s resentence, determined defendant should have been allowed to make a sentence before the sentence was pronounced: At that proceeding, the defendant requested an opportunity to address the court. The court denied the defendant’s request. The defendant appeals, and we reverse. A defendant is entitled “to make a statement personally in […]

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BY ENTERING A PLEA AGREEMENT WITH A TESTIFYING CODEFENDANT THE TRIAL JUDGE ABANDONED THE ROLE OF A NEUTRAL ARBITER AND DEPRIVED DEFENDANT OF A FAIR TRIAL (SECOND DEPT).

The Second Department, reversing defendant’s conviction and ordering a new trial before a different judge, determined defendant was deprived of a fair trial by the judge’s entering a plea agreement with a testifying codefendant: The defendant …  contends that he was deprived of his due process right to a fair trial by the County Court’s […]

THE JUDGE DID NOT PRONOUNCE THE LENGTH OF THE TERM OF PROBATION, SENTENCE VACATED AND MATTER REMITTED (SECOND DEPT).

The Second Department, vacating defendant’s sentence, determined the judge’s failure to pronounce the term of probation required remittal: CPL 380.20 requires that courts “must pronounce sentence in every case where a conviction is entered.” “When the sentencing court fails to orally pronounce a component of the sentence, the sentence must be vacated and the matter […]

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ALTHOUGH THE TENANT HAD VIOLATED CERTAIN PROVISIONS OF THE LEASE, THE EVICTION PENALTY SHOCKED THE CONSCIENCE AS A MATTER OF LAW (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, over a dissent, determined the housing authority’s (THA’s) eviction of petitioner was too severe a penalty for her alleged sporadic failure to make timely rent payments, her alleged failure to allow an exterminator to enter the apartment, and her single allegedly “rude and loud” phone conversation with a […]

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THE APPLICATION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD NOT HAVE BEEN GRANTED; THERE WAS NO SHOWING THE CITY AND FIRE DEPARTMENT HAD TIMELY KNOWLEDGE OF A POTENTIAL NEGLIGENCE ACTION ARISING FROM A RESPONSE TO A 911 CALL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the application for leave to file a late notice of claim should not have been granted. Plaintiff alleged the city and the fire department (the appellants) were negligent in the response to a 911 call made after petitioner’s daughter was discovered drowning in a swimming pool. The petitioner did […]

EVEN THOUGH THE BREACH OF CONTRACT ACTION WAS TIME-BARRED, THE EXISTENCE OF A VALID CONTRACT PRECLUDED AN ACTION IN QUANTUM MERUIT OR QUASI CONTRACT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion to dismiss the breach of contract cause of action should have been granted because it was time-barred. In addition, the quantum meruit cause of action should have been dismissed because a valid contract precludes recovery in quasi contract: The defendants established, prima facie, that this action […]

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DEFENDANT’S MOTION TO RENEW HIS OPPOSITION TO THE BANK’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION SHOULD HAVE BEEN GRANTED; THE BANK HAD ORIGINALLY ALLEGED IT POSSESSED THE NOTE AND THEREFORE HAD STANDING TO FORECLOSE; SUBSEQUENTLY THE BANK SUBMITTED A LOST NOTE AFFIDAVIT IN SUPPORT OF ITS MOTION TO CONFIRM THE REFEREE’S REPORT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion to renew his opposition to the bank’s motion for summary judgment should have been granted in this foreclosure action. In support of its summary judgment motion the bank alleged it had standing based upon possession of the note. However, in support of the bank’s subsequent motion […]

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ALTHOUGH PLAINTIFF BANK DID NOT DEMONSTRATE THE RPAPL 1304 NOTICE WAS MAILED TO DEFENDANT IN THIS FORECLOSURE ACTION, DEFENDANT’S DENIAL OF RECEIPT OF THE NOTICE WAS NOT SUFFICIENT TO WARRANT SUMMARY JUDGMENT IN FAVOR OF DEFENDANT (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined defendant’s cross motion for summary judgment in this foreclosure action should not have been granted. Supreme Court properly found that the bank did not provide sufficient proof that the Real Property Actions and Proceedings Law (RPAPL) 1304 notice was mailed to defendant. But defendant’s mere denial of […]

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WHERE THERE ARE TWO POSSIBLE CAUSES OF A DANGEROUS CONDITION AND THE TRIER OF FACT WOULD HAVE TO RESORT TO SPECULATION ABOUT WHETHER THE ALLEGED NEGLIGENCE OF THE DEFENDANT WAS THE PROXIMATE CAUSE, THE ACTION MUST BE DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant New York City Housing Authority’s (NYCHA’s) summary judgment motion in this playground injury case should have been granted. Plaintiff alleged a water sprinkler, in which children could play, was too close to the monkey bars and infant plaintiff was injured falling from the wet monkey bars. However […]

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REFEREE’S FINDINGS WERE BASED UPON HEARSAY PROVIDED BY THE BANK IN THIS FORECLOSURE ACTION; THE REFEREE’S REPORT SHOULD NOT HAVE BEEN CONFIRMED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the referee’s report in this foreclosure action should not have been confirmed. The report was based upon hearsay provided by the bank and therefore the referee’s findings were not supported by the record: The Supreme Court should have denied the plaintiff’s motion, in effect, to confirm the referee’s […]

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