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Entries by Bruce Freeman

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REVOCATION OF PETITIONER’S DRIVER’S LICENSE, BASED UPON A 1995 DEFAULT CONVICTION OF WHICH PETITIONER WAS APPARENTLY UNAWARE, WAS ARBITRARY AND CAPRICIOUS (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Manzanet-Daniels, determined the revocation of defendant’s driver’s license based upon a 24-year-old default conviction, which involved an error made by the Department of Motor Vehicles in 1994 (misspelling petitioner’s name), was arbitrary and capricious: Petitioner was issued four summonses in October of 1994 for driving violations […]

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THE DETAILED STATUTORY SCHEME OF THE REVISED LIMITED PARTNERSHIP ACT (RLPA) PRECLUDED ENFORCEMENT OF THE UNSIGNED PURPORTED AMENDMENT TO THE PARTNERSHIP AGREEMENT (FIRST DEPT). ​

he First Department determined the 1999 partnership agreement controlled and the purported 2004 amendment to the agreement, which was not executed, could not be enforced. The decision is too detailed to fairly summarize here. Suffice to say that the detailed statutory scheme of the Revised Limited Partnership Act (RLPA) precluded ignoring the Statute of Frauds […]

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ALTHOUGH THE DAMAGES WERE DEEMED EXCESSIVE, PLAINTIFFS’ MULTI-MILLION DOLLAR VERDICT IN THE ASBESTOS MESOTHELIOMA ACTION WAS SUPPORTED BY THE EXPERT EVIDENCE OF CAUSATION (FIRST DEPT).

The First Department, although finding some of the damage amounts excessive, determined, over a dissent, the plaintiffs’ multi-million-dollar verdict in this asbestos exposure case was supported by the evidence. The case hinged on expert evidence that the extent of the exposure was sufficient to cause the resulting illness. The dissent argued the expert evidence did […]

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PLAINTIFF BANK’S ATTORNEY’S FEES IN THIS BREACH OF CONTRACT ACTION SHOULD NOT HAVE BEEN AWARDED ABSENT PROOF OF THE ATTORNEY’S EXPERIENCE AND ABILITIES AND THE NATURE OF THE SERVICES RENDERED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the court should not have awarded attorney’s fees to plaintiff bank in this breach of contract/guaranty action because the attorney’s experience and abilities and the nature of the services were not spelled out: … [T]he Supreme Court should not have awarded the bank attorneys’ fees, costs, and disbursements […]

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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