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Entries by Bruce Freeman

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THE ATTORNEY’S FAILURE TO NOTIFY THE CLIENT OF THE CLIENT’S RIGHT TO ARBITRATE A FEE DISPUTE WITHIN TWO YEARS OF WHEN THE LEGAL SERVICES WERE RENDERED PRECLUDES THE ATTORNEY’S ACTION FOR PAYMENT OF THE FEE (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Webber, in a matter of first impression, determined plaintiff-attorney’s failure to timely notify defendant-client of the right to arbitrate a fee dispute required dismissal of the attorney’s action seeking attorney’s fees. The Committee on Fee Disputes and Conciliation (Committee) can not hear fee disputes more that […]

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ALTHOUGH DEFENDANTS’ INSURER OBTAINED A DECLARATORY JUDGMENT (BY DEFAULT) THAT IT WAS NOT OBLIGATED TO PAY NO-FAULT BENEFITS TO PLAINTIFF PEDESTRIAN IN THIS TRAFFIC ACCIDENT CASE, THE DECLARATORY JUDGMENT DID NOT PRECLUDE, UNDER EITHER CLAIM OR ISSUE PRECLUSION, PLAINTIFF’S PERSONAL INJURY ACTION AGAINST DEFENDANTS (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Renwick, after a comprehensive analysis of res judicata and collateral estoppel, refusing to follow the Second Department, determined a default judgment in a declaratory judgment action brought against plaintiff by defendant driver/owner’s insurer (Nationwide) did not preclude plaintiff’s subsequent personal injury action against defendants. Plaintiff alleged […]

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THE PETITIONS FOR WRITS OF HABEAS CORPUS SEEKING RELEASE FROM RIKERS ISLAND BASED UPON THE RISK OF CONTRACTING COVID-19 PROPERLY DENIED (FIRST DEPT).

The First Department determined the petitions for writs of habeas corpus brought by inmates at Rikers Island, arguing the risk of contracting COVID-19 at the jail required release, were properly denied. State and Federal constitutional arguments were raised. The analysis, which is too complex to fairly summarize here, came down to weighing the danger to […]

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CITY TOOK THE REQUISITE HARD LOOK AT THE ENVIRONMENTAL IMPACTS OF THE REDEVELOPMENT PLAN, INCLUDING ITS EFFECTS ON RENTER DISPLACEMENT; SUPREME COURT SHOULD NOT HAVE ANNULLED THE ADOPTION OF THE PLAN (FIRST DEPT).

The First Department, reversing Supreme Court, ruled that the City Council, in approving the redevelopment plan, had taken the requisite hard look pursuant to the State Environmental Quality Review Act (SEQRA) and the City Environmental Quality Review Act (CEQRA) at the environmental impacts of the plan as described in the Final Environmental Impact Statement (FEIS): Petitioners […]

BECAUSE THE DESIGNATING PETITIONS OF THE INITIAL CANDIDATE FOR STATE SENATE WERE INVALIDATED, THE PETITION TO VALIDATE CERTIFICATES OF SUBSTITUTION FOR ANOTHER CANDIDATE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the petition to validate certificates of substitution for a candidate (Sammut) for State Senate after the designating petitions of the initial candidate (LaLota) were invalidated should not have been granted. Because there was no valid designating petition, substitution was barred: “[P]ursuant to Election Law § 6-148(1), a valid […]

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ALTHOUGH THE MOTION TO DISMISS FOR FAILURE TO SERVE A DEFENDANT SHOULD HAVE BEEN DENIED AND THE MOTION TO EXTEND TIME TO SERVE GRANTED, THE MOTION TO DISMISS ON FORUM NON COVENIENS GROUNDS WAS PROPERLY GRANTED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the motion to dismiss the complaint based upon the failure to serve defendant (Bryan) should have been denied and plaintiff’s motion to extend the time to serve defendants (Bryan and Carroll) should have been granted. However the action was properly dismissed on forum non conveniens grounds: … […]

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THE DEFENDANTS DEMONSTRATED THE CITY DID NOT NOTIFY THEM OF THE NEED TO REPAIR THE ABUTTING PUBLIC SIDEWALK AND THEREBY DEMONSTRATED THEY HAD NO STATUTORY DUTY TO REPAIR THE SIDEWALK; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE PROPERTY GRANTED (SECOND DEPT).

The Second Department determined defendant abutting property owner demonstrated it was not responsible for the repair of any alleged defects in the public sidewalk in this slip and fall case. The city code imposed liability only if the landowner was notified of the need for repair: Section 167-50(A) of the Code of the City of […]

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DEFENDANT HOME OWNER DEMONSTRATED HE DID NOT HAVE SUPERVISORY CONTROL OVER PLAINTIFF’S WORK AND DID NOT HAVE ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF THE DANGEROUS CONDITION WHICH ALLEGEDLY RESULTED IN PLAINTIFF’S INJURIES IN THIS LABOR LAW 200 ACTION; SUPREME COURT SHOULD NOT HAVE CONSIDERED AN AFFIDAVIT FROM A NOTICE WITNESS WHO WAS NOT DISCLOSED PRIOR TO THE SUMMARY JUDGMENT MOTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant home owner’s motion for summary judgment in this Labor Law 200 action should have been granted. Defendant was not home when plaintiff fell through an open hole in the deck while removing a window. The defendant demonstrated he did not have any control over the manner of […]

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THERE ARE QUESTIONS OF FACT WHETHER THE CITY’S DELAY IN NOTIFYING THE NEXT OF KIN OF THE IDENTIFICATION OF DECEDENT’S BODY AND THE LOCATION OF DECEDENT’S REMAINS ENTITLES THE NEXT OF KIN TO DAMAGES PURSUANT TO THE COMMON-LAW RIGHT OF SEPULCHER (SECOND DEPT).

The Second Department determined there were questions of fact in this right of sepulcher action stemming from city’s delay in notifying decedent’s next of kin if the identification and location of decedent’s remains. On June 27, 2003, the plaintiff reported to the police that his 16-year-old son (hereinafter the decedent) was missing, and the New […]

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THE ACTION ALLEGING DEFECTIVE CONSTRUCTION OF A CONDOMINIUM ACCRUED WHEN THE WORK WAS COMPLETED, I.E., WHEN THE CERTIFICATE OF OCCUPANCY WAS ISSUED; THE ACTION WAS TIME-BARRED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the action alleging defective construction of a condominium was time-barred. The action accrued the work was completed, i.e., when the certificate of occupancy was issued: A claim for damages arising from defective construction accrues on the date of completion of the work … . “This rule applies […]

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