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Entries by Bruce Freeman

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THE BANK DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 13O4 AND A CONDITION PRECEDENT IN THE MORTGAGE IN THIS FORECLOSURE ACTION; THE BANK’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank did not demonstrate compliance with the notice requirements of RPAPL 1304 and a condition precedent in the mortgage and therefore was not entitled to summary judgment in this foreclosure action: Here, the plaintiff failed to establish, prima facie, that it complied with the requirements of RPAPL […]

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THE PEOPLE DID NOT DEMONSTRATE THAT THE ANALYST WHO TESTIFIED ABOUT THE GENERATION OF THE DNA PROFILE HAD FIRST-HAND KNOWLEDGE OF THE PROCEDURE USED OR INDEPENDENTLY ANALYZED THE RAW DATA; NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined the defendant was deprived of the opportunity to cross-examine a witness who had first-hand knowledge of the generation of the DNA profile: When confronted with testimonial DNA evidence at trial, a defendant is entitled to cross-examine “an analyst who witnessed, performed or supervised the generation of defendant’s DNA […]

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THE SUPPORT MAGISTRATE SHOULD HAVE INQUIRED FURTHER WHEN FATHER SAID HE WISHED TO HAVE AN ATTORNEY BUT COULD NOT AFFORD ONE; THE SUPPORT MAGISTRATE TOLD FATHER HE WAS NOT ENTITLED TO APPOINTED COUNSEL BECAUSE HE WAS WORKING; FATHER WAS DEPRIVED OF HIS RIGHT TO COUNSEL (SECOND DEPT).

The Second Department, reversing Family Court, determined the Support Magistrate should have inquired further when father said he wanted an attorney but could not afford one. The Support Magistrate told father he was not entitled to an appointed attorney because he was employed: The Support Magistrate should have inquired further into the father’s financial circumstances, […]

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DEFENDANT DID NOT OFFER PROOF OF WHEN THE AREA WHERE PLAINTIFF SLIPPED AND FELL ON WATER WAS LAST CLEANED OR INSPECTED; THEREFORE DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion for summary judgment in this slip and fall case should not have been granted. The defendant failed to demonstrate it did not have constructive notice of the water on the floor because it did not offer any proof of when the area had last been cleaned […]

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ALTHOUGH THE CAR DEALER, DUE TO AN ERROR, DID NOT SUBMIT THE CORRECT REGISTRATION DOCUMENTS TO THE DEPARTMENT OF MOTOR VEHICLES WITHIN THE MANDATED FIVE-DAY PERIOD, THAT DEFECT DID NOT INVALIDATE THE TRANSFER OF OWNERSHIP OF THE CAR TO THE DRIVER INVOLVED IN THE ACCIDENT; THE DEALER WAS NOT THE OWNER OF THE CAR AT THE TIME OF THE ACCIDENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the dealer (Zaki’s) which sold a car to the hit-and-run driver (Marcial) in this pedestrian traffic accident case demonstrated it was not the owner of the car at the time of the accident. The transaction was complete and the driver was insured. When the dealer submitted the title […]

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GENERAL OBLIGATIONS LAW 5-703 GIVES AN EQUITY COURT THE POWER TO ENFORCE AN ORAL CONTRACT FOR THE PURCHASE OF REAL PROPERTY; THE CAUSES OF ACTION SEEKING TO ENFORCE AN ALLEGED ORAL AGREEMENT GIVING PLAINTIFFS THE OPTION TO PURCHASE THE PROPERTY UPON THE OWNER’S DEATH SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, held that the general statute of frauds statute, General Obligations Law (GOL) 5-701, did not apply to the alleged oral agreement to give plaintiffs the option to buy the decedent’s property upon her death. Rather GOL 5-703, which carves out an exception for specific performance of a real estate contract, applied. […]

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WHETHER TO INSTRUCT THE JURY ON THE EXTREME EMOTIONAL DISTURBANCE (EED) AFFIRMATIVE DEFENSE MUST BE DETERMINED BASED SOLELY UPON THE PEOPLE’S PROOF AT TRIAL; IT WAS (HARMLESS) ERROR FOR THE COURT TO MAKE THAT DETERMINATION PRIOR TO TRIAL (FOURTH DEPT).

The Fourth Department noted that the court committed (harmless) error when it ruled, prior to the trial, that the jury would not be instructed on the extreme emotional disturbance (EED) affirmative defense: … [T]he court erred in determining prior to trial that it would not charge the jury on the affirmative defense of EED. A […]

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DEFENDANT WAS GIVEN THE ERRONEOUS IMPRESSION THE WAIVER OF APPEAL FORECLOSED ALL APPELLATE RIGHTS; THE WAIVER WAS THEREFORE INVALID (FOURTH DEPT). ​

The Fourth Department determined defendant’s waiver of appeal was not valid because the court gave the erroneous impression all appellate rights were given up by the waiver: County Court’s oral explanation of the waiver suggested that defendant was entirely ceding any ability to challenge his guilty plea on appeal, but such an “improper description of the […]

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DEFENDANT, FROM THE OUTSET, CLAIMED A MAN SHE HAD JUST MET AT A BAR WAS DRIVING HER CAR WHEN IT WENT OFF THE ROAD AND THEN FLED THE SCENE; THE DWI CONVICTIONS WERE AGAINST THE WEIGHT OF THE EVIDENCE (FOURTH DEPT).

The Fourth Department, reversing the Driving While Intoxicated (DWI) convictions, determined the convictions were against the weight of the evidence. The defendant claimed from the outset that her car, which had gone off the road, was driven by a man she just met at a bar and who fled after the accident. There was no direct evidence […]

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