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Entries by Bruce Freeman

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PLAINTIFF MOVED FOR AN ORDER OF REFERENCE WITHIN ONE YEAR OF DEFENDANT’S DEFAULT IN THIS FORECLOSURE ACTION; EVEN THOUGH THE MOTION WAS WITHDRAWN, THE COMPLAINT SHOULD NOT HAVE BEEN DISMISSED AS ABANDONED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s (US Bank’s) motion to dismiss the complaint as abandoned pursuant to CPLR 3215(c) should not have been granted in this foreclosure action. Plaintiff had moved for an order of reference within one year of defendant’s default but then withdrew the motion: CPLR 3215(c) provides that “[i]f the […]

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THE CITY NEED NOT PROVE THE POLICE CORROBORATED INFORMATION PROVIDED BY AN INFORMANT IN A CIVIL ACTION FOR FALSE ARREST STEMMING FROM THE EXECUTION OF A SEARCH WARRANT BASED UPON ‘BAD CI INFORMATION’ (SECOND DEPT).

The Second Department determined that, in the context of a civil trial alleging false imprisonment stemming from police officers entering plaintiffs’ apartment to execute a search warrant, the city does not have to prove the police properly corroborated the informant’s allegations on which the warrant was based. Apparently, the informant provided “bad … information:” To prevail […]

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ONE DEFENDANT BREACHED A CONTRACT; THE OTHER DEFENDANT TORTIOUSLY INTERFERED WITH PLAINTIFF’S PROSPECTIVE BUSINESS RELATIONS; THE JURY AWARDED SEPARATE DAMAGE-AMOUNTS FOR EACH DEFENDANT; SUPREME COURT SHOULD NOT HAVE HELD BOTH DEFENDANTS JOINTLY AND SEVERALLY LIABLE FOR THE COMBINED AMOUNT OF DAMAGES (SECOND DEPT). ​

The Second Department, in a full-fledged opinion by Justice Cohen, reversing Supreme Court, determined the defendants, one of which was found by the jury to have breached a contract, and the other which was found to have tortiously interfered with plaintiff’s prospective business relations, should not have been deemed jointly and severally liable. Each was […]

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DEFENDANTS DID NOT REQUEST THAT PLAINTIFFS GRANT A LICENSE FOR EXCAVATION WORK NEXT DOOR TO PLAINTIFFS’ BUILDING; NYC BUILDING CODE 3309.4 IMPOSES STRICT LIABILITY FOR DAMAGE CAUSED BY SUCH EXCAVATION WORK; OVERRULING PRECEDENT, PLAINTIFFS DID NOT NEED TO SHOW EITHER THAT A LICENSE WAS GRANTED OR THAT PLAINTIFFS TOOK OTHER STEPS TO PROTECT THEIR PROPERTY TO BE ENTITLED TO SUMMARY JUDGMENT FOR DEFENDANTS’ VIOLATION OF BUILDING CODE SECTION 3309.4 (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Leventhal, overruling precedent, determined plaintiffs were entitled to summary judgment in this action alleging damage to plaintiffs’ building caused by defendants’ excavation for a new building next door. The New York City Building Code (BC) section 3309.4 imposes strict liability for damage caused by such excavation work. Here […]

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FORMER LAW FIRM PARTNER WAS ENTITLED TO AN ACCOUNTING; IN DETERMINING THE BUYOUT PRICE UPON THE PARTNER’S WITHDRAWAL FROM THE PARTNERSHIP, THE TERMS OF THE PARTNERSHIP AGREEMENT, RATHER THAN PARTNERSHIP LAW, CONTROL (SECOND DEPT).

The Second Department determined plaintiff, a former partner in a law firm, was entitled to an accounting and a buyout price calculated pursuant to the provisions of the partnership agreement: ” The right to an accounting is premised upon the existence of a confidential or fiduciary relationship and a breach of the duty imposed by […]

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THE HOSPITAL DEFENDANTS’ EXPERT’S AFFIDAVIT DID NOT LAY A SUFFICIENT FOUNDATION FOR THE EXPERT’S OPINIONS ON MATTERS OUTSIDE OF OBSTETRICS AND GYNECOLOGY; THE HOSPITAL DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the hospital defendants’ expert’s affidavit did not establish that the expert (D’Amico) was qualified to offer an opinion on several issues surrounding the birth process and therefore did not provide sufficient evidence to support the hospital defendants’ motion for summary judgment: … [T]he expert affirmation offered by the […]

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ALTHOUGH THE EMERGENCY HAD DIMINISHED AND THE POLICE OFFICER HAD TURNED OFF HIS SIREN AND LIGHTS WHEN THE ACCIDENT OCCURRED, THE OFFICER WAS STILL ENGAGED IN AN EMERGENCY OPERATION AND DID NOT ACT IN RECKLESS DISREGARD FOR THE SAFETY OF OTHERS, SUPREME COURT REVERSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant police officer (Hurley) was engaged in an emergency operation when the officer’s car struck the plaintiffs’ car as the officer made a turn onto the street where plaintiffs’ car was at a stop sign. Although the officer thought the urgency had diminished and had turned off […]

MOTION TO AMEND THE SUMMONS AND COMPLAINT TO ADD AN APPARENTLY MISNAMED PARTY AFTER THE STATUTE OF LIMITATIONS HAD RUN SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion to amend the summons and complaint to add an apparently misnamed party after the statute of limitations had run should not have been granted: On March 27, 2014, the plaintiff allegedly was injured while boarding a ski lift at Hunter Mountain in Hunter. On March 23, […]

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A CORRECTION LAW PROVISION INSULATED THE PETITIONER-INMATE FROM DISCIPLINE FOR SENDING A LETTER REQUESTING AN INSTITUTIONAL POLICY CHANGE REGARDING VENDORS WHICH SUPPLY PACKAGES TO PRISONS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined petitioner-inmate should not have been disciplined for a letter to vendors which supply packages to prisons. Petitioner was opposed to a pilot program awarding eight vendors the exclusive right to supply packages to prisons. Petitioner sent a letter urging excluded vendors to “fight back” and was disciplined under […]

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THE PROOF DID NOT SUPPORT SURROGATE’S COURT’S FINDING THAT THERE WAS A CONFIDENTIAL RELATIONSHIP BETWEEN RESPONDENTS AND THE DECEDENT AND THE PROOF DID NOT SUPPORT THE FINDING THAT RESPONDENTS EXERTED UNDUE INFLUENCE UPON DECEDENT (FOURTH DEPT).

The Fourth Department, reversing Surrogate’s Court, determined the evidence did not support the finding that the respondents, decedent’s daughter Ellen and her son, Alex, exerted undue influence upon the decedent. In addition, the proof did not support the finding of a confidential relationship between respondents and the decedent: Here, although the record establishes that Ellen […]

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