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Entries by Bruce Freeman

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CLAIMANT’S SEXUAL ABUSE CONVICTION WAS VACATED AFTER THE ALLEGED VICTIM RECANTED; CLAIMANT BROUGHT AN ACTION AGAINST THE STATE PURSUANT TO COURT OF CLAIMS ACT SECTION 8-B FOR UNJUST CONVICTION AND IMPRISONMENT; THE COURT OF CLAIMS PROPERLY FOUND CLAIMANT DID NOT PROVE HIS INNOCENCE BY CLEAR AND CONVINCING EVIDENCE (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Halligan, over a dissenting opinion, affirming the dismissal of claimant’s action for unjust conviction and imprisonment, determined claimant, whose sexual abuse conviction was vacated after the alleged victim recanted, did not prove his innocence by clear and convincing evidence. The opinion is fact-specific and cannot […]

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HERE PLAINTIFF HAD THE RIGHT-OF-WAY ENTERING AN INTERSECTION AND DEFENDANT FAILED TO YIELD; PLAINTIFFS WERE ENTITLED TO SUMMARY JUDGMENT ON LIABILITY AND DISMISSAL OF DEFENDANTS’ COMPARATIVE NEGLIGENCE AFFIRMATIVE DEFENSE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiffs in this intersection-accident case was entitled to summary judgment on liability and dismissal of defendants’ comparative negligence affirmative defense: “‘A driver who enters an intersection against a red traffic light in violation of Vehicle and Traffic Law § 1110(a) is negligent as a matter of law’” … […]

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THE BANK DID NOT PROVE DEFENDANT’S DEFAULT IN THIS FORECLOSURE ACTION; THE AVERMENTS ABOUT DEFENDANT’S DEFAULT WERE BASED UPON THE AFFIANT’S REVIEW OF BUSINESS RECORDS; BECAUSE THE RECORDS WERE NOT ATTACHED, THE AFFIDAVIT WAS INADMISSIBLE HEARSAY (SECOND DEPT).

The Second Department, reversing Supreme Court in this foreclosure action, determined plaintiff bank did not prove defendant’s default because the relevant business records were not attached to the affidavit describing the default: “Among other things, a plaintiff can establish a default by submission of an affidavit from a person having personal knowledge of the facts, […]

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ALTHOUGH THE SCHOOL DISTRICT HAD TIMELY KNOWLEDGE OF THE INCIDENT AND THE PETITIONER’S INJURIES, IT DID NOT HAVE TIMELY KNOWLEDGE OF THE FACTS THAT UNDERLIE THE LEGAL THEORIES OF LIABILITY; THEREFORE THE PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined petitioner, a nurse hired to care for M.C., an infant, was not entitled to leave to file a late notice of claim against the school district for injuries allegedly suffered when M.C. struck her in a stairway at M.C.’s elementary school. Although there was an incident report and […]

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HERE MOTHER’S CONCLUSORY AFFIDAVIT CLAIMING SHE WAS NOT SERVED WITH THE SUMMONS AND COMPLAINT BUT RATHER FOUND THE PAPERS ON THE GROUND IN FRONT OF THE FRONT DOOR WAS CONCLUSORY AND INSUFFICIENT TO REBUT THE PROCESS SERVER’S AFFIDAVIT; THEREFORE NO HEARING SHOULD HAVE BEEN HELD AND THE COMPLAINT SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the conclusory affidavit by defendants’ mother, alleging she was not served with the summons and complaint but rather found the papers on the ground in front of her front door, was not sufficient to rebut the process server’s affidavit demonstrating proper service upon a person identified as “aunt:” […]

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IF DEFENDANT DRIVER, COCUZZO, WAS AN EMPLOYEE OF DEFENDANT RANDALL AT THE TIME OF THE ACCIDENT, RANDALL WOULD BE VICARIOUSLY LIABLE; NOT SO IF COCUZZO WAS AN INDEPENDENT CONTRACTOR; THE “EMPLOYER VS INDEPENDENT CONTRACTOR” ISSUE MUST BE RESOLVED BY THE TRIER OF FACT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined whether defendant Randall Provisions, Inc. was vicariously liable for defendant Cocuzzo’ s traffic accident depended on a question of fact, i.e., whether Cocuzzo was an employee or an independent contractor. Therefore Randall’s motion for summary judgment should not have been granted: Randall submitted, inter alia, transcripts of the […]

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THE BANK’S UNILATERAL ATTEMPT TO REVOKE THE ACCELERATION OF THE DEBT IS PRECLUDED BY THE FORECLOSURE ABUSE PROTECTION ACT (FAPA) WHICH APPLIES RETROACTIVELY TO THIS CASE; THE FORECLOSURE ACTION IS TIME-BARRED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined a letter from the bank in this foreclosure action purporting to revoke a prior acceleration of the debt did not stop the running of the six-year statute of limitations. The action was therefore time-barred. The Second Department noted that the Foreclosure Abuse Prevention Act (FAPA), effective December 30, […]

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PLAINTIFF’S DEPOSITION TESTIMONY, SUBMITTED BY DEFENDANT PROPERTY OWNER IN THIS STAIRCASE SLIP AND FALL CASE, SUFFICIENTLY IDENTIFIED THE CAUSES OF PLAINTIFF’S FALL AND RAISED A QUESTION OF FACT ABOUT DEFENDANT’S CONSTRUCTIVE NOTICE OF THE CONDITION OF THE STAIRCASE; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the plaintiff’s deposition testimony adequately identified the causes of his staircase slip and fall and raised a question of fact about the defendant property owner’s constructive notice of the condition of the staircase. Therefore defendant’s motion for summary judgment should not have been granted: “In a premises liability […]

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HERE A DISPUTE AMONG BROTHERS ABOUT OWNERSHIP OF REAL PROPERTY WAS RESOLVED BY AN OPEN COURT STIPULATION (CONTRACT) WHICH CANNOT BE INVALIDATED ABSENT FRAUD, COLLUSION, MISTAKE OR ACCIDENT; THEREFORE SUPREME COURT SHOULD HAVE HELD A HEARING BEFORE APPROVING THE SUBSEQUENT APPORTIONMENT OF THE PROPERTY BY A RECEIVER WHICH WAS INCONSISTENT WITH THE STIPULATION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the receiver’s (Hafner’s) apportionment of the proceeds of the sale of real property owned by several brothers was inconsistent with the open court stipulation which had attempted to resolve the dispute before the receiver was appointed. Absent fraud, collusion, mistake or accident, a stipulation (contract) should not be […]

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