You are here: / Bruce Freeman

Entries by Bruce Freeman

, ,

THE DISMISSAL OF A FORELCOSURE ACTION ON THE GROUND THE BANK FAILED TO COMPLY WITH THE NOTICE OF DEFAULT PROVISIONS IN RPAPL 1304 IS NOT AN EXPRESS JUDICIAL DETERMINATION THAT THE ACTION DID NOT VALIDLY ACCELERATE THE DEBT; THEREFORE, HERE, THE 2013 FORECLOSURE ACTION IS TIME-BARRED PURSUANT TO THE FORECLOSURE ABUSE PREVENTION ACT (FAPA) (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the foreclosure action was time-barred. The bank’s argument that the the foreclosure complaint filed in 2013 did not accelerate the debt was rejected. The 2013 action was dismissed in 2018 because the bank did not comply with the notice of default requirement in Real Property Actions and Proceedings […]

PLAINTIFF TRIPPED AND FELL AS HE WALKED THROUGH A “ROOM,” NOT A “PASSAGEWAY;” THEREFORE THE LABOR LAW 241(6) CAUSE OF ACTION BASED ON THE INDUSTRIAL CODE PROVISION PROHIBITING OBSTRUCTIONS IN A “PASSAGEWAY” SHOULD HAVE BEEN DISMISSED (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, determined the Labor Law 241(6) cause of action based on an Industrial Code regulation requiring passageways be kept free of obstructions did not apply to the room where plaintiff tripped and fell: … [P]laintiff testified that while he was walking through a room, he slipped upon and became […]

, , , , , ,

THERE WAS NO PROOF DEFENDANT WAS NOTIFIED OF THE SORA RISK-LEVEL ASSESSMENT HEARING AND VOLUNTARILY WAIVED HIS RIGHT TO BE PRESENT; THE DUE PROCESS ISSUE NEED NOT BE PRESERVED FOR APPEAL BECAUSE DEFENDANT DID NOT HAVE THE OPPORTUNITY TO OBJECT; LEVEL-THREE RISK-LEVEL ASSESSMENT REVERSED (THIRD DEPT). ​

The Third Department, reversing County Court’s level-three SORA risk-level assessment and remitting the matter, determined the People did not demonstrate defendant waived his right to be present at the virtual SORA risk-assessment hearing. The judge relied on an email from the Department of Corrections and Community Supervision stating that defendant “is waiving his right to […]

,

IN A SLIP AND FALL CASE, TO DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF THE CONDITION, THE DEFENDANT MUST PROVE THE AREA OF THE SLIP AND FALL WAS CLEANED OR INSPECTED CLOSE IN TIME TO THE INCIDENT; PROOF OF GENERAL CLEANING OR INSPECTION PRACTICES IS NOT ENOUGH; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant in this black-ice slip and fall case did not demonstrate when the area was last inspected or cleaned. Therefore the defendant did not demonstrate a lack of constructive notice of the condition. Proof of general cleaning and inspection practices is insufficient. Defendant’s motion for summary judgment […]

,

A JUDGE SHOULD NOT, SUA SPONTE, ORDER THE DISMISSAL OF A COMPLAINT ABSENT “EXTRAORDINARY CIRCUMSTANCES,” NOT PRESENT HERE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined there were no extraordinary circumstances to justify the judge’s “sua sponte” dismissal of the complaint: “A court’s power to dismiss a complaint, sua sponte, is to be used sparingly and only when extraordinary circumstances exist to warrant dismissal” … . Here, no extraordinary circumstances existed warranting dismissal of […]

,

A CONDITION WHICH MIGHT BE DEEMED OPEN AND OBVIOUS CAN BECOME A “TRAP FOR THE UNWARY” WHEN A PERSON IS DISTRACTED; HERE PLAINTIFF SLIPPED AND FELL WHEN HIS FOOT WAS CAUGHT IN A DEPRESSION BETWEEN DEFENDANT’S FENCE AND THE SIDEWALK AS PLAINTIFF TRIED TO SEPARATE TWO FIGHTING DOGS; 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 on the ground the condition was open and obvious. Plaintiff was trying to separate two fighting dogs when his foot was caught in a depression between defendant’s fence and the sidewalk. The […]

, ,

PLAINTIFF’S MOTION TO AMEND THE COMPLAINT TO ADD ALLEGATIONS SUPPORTING “PIERCING THE CORPORATE VEIL” SHOULD HAVE BEEN GRANTED, CRITERIA EXPLAINED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion to amend the complaint to add allegations supporting “piercing the corporate veil” in this breach of contract action should have been granted: “Broadly speaking, the courts will disregard the corporate form, or, to use accepted terminology, pierce the corporate veil, whenever necessary to prevent fraud or […]

,

BECAUSE THE RES IPSA LOQUITUR DOCTRINE IS DEPENDENT UPON CIRCUMSTANTIAL EVIDENCE FROM WHICH INFERENCES MUST BE DRAWN, SUMMARY JUDGMENT IS USUALLY NOT APPROPRIATE; HERE A GARAGE DOOR CLOSED OR FELL ON PLAINTIFF; PLAINTIFF’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the res ipsa loquitur doctrine was not a proper basis for granting plaintiff’s summary judgment motion. Plaintiff was injured when a garage door at defendant’s vehicle-repair shop closed on her as she left the customer waiting area. Plaintiff could have used an exterior door rather than the open […]

STANDING ON AN INVERTED BUCKET CONSTITUTED A “PHYSICALLY SIGNIFICANT” HEIGHT-DIFFERENTIAL FOR PURPOSES OF LIABILITY UNDER LABOR LAW 240(1); INJURY WHILE PREVENTING A FALL IS COVERED BY LABOR LAW 240(1) (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined there was a question of fact whether plaintiff’s injury, suffered as he tried to maintain his balance while standing on an inverted bucket, was covered by Labor Law 240(1), despite the fact that plaintiff did not actually fall: Plaintiff … testified at his deposition that he sustained […]

,

THE LAWSUIT BROUGHT BY PLAINTIFF BENEFICIARY AGAINST DEFENDANT TRUSTEE DID NOT CHALLLENGE THE TRUST, BUT RATHER SOUGHT TO ENFORCE THE PROVISIONS OF THE TRUST; THEREFORE THE LAWSUIT DID NOT TRIGGER THE IN TERROREM CLAUSE (WHICH DISPOSSES A BENEFICIARY WHO SEEKS TO NULLIFY THE TRUST); THERE WAS A THREE-JUDGE DISSENT (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge Rivera, over a three-judge dissent, reversing (modifying) Supreme Court, determined the lawsuit brought by plaintiff beneficiary of the estate (Carlson) against the trustee (Colangelo) did not trigger the “in terrorem” clause in the will and the trust. Therefore the provisions of the will and the […]

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy