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Entries by Bruce Freeman

CHANGE IN TAX LAW RESULTING IN THE REMOVAL OF PETITIONER LAW FIRM’S CERTIFICATION AS A QUALIFIED EMPIRE ZONE ENTERPRISE ENTITLED TO TAX CREDITS SHOULD NOT HAVE BEEN APPLIED RETROACTIVELY (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the amendments to the Economic Development Zones Act of 2009 should not have been applied retroactively to petitioners, MSLMSH (a law firm and related parties), to remove petitioners’ certification as a qualified empire zone enterprise (QEZE) entitled to tax credits based upon the location of the business in Syracuse: […]

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UNION REPRESENTING CITY EMPLOYEES HAS STANDING TO CONTEST THE CREATION OF A NEW CITY DEPARTMENT AFFECTING THOSE EMPLOYEES (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the labor union representing employees of the city’s Office of the Building Inspector and Bureau of Code Enforcement had standing to contest an executive order issued by the mayor and related regulations which created a new Building Department: “[S]tanding is a threshold determination and a litigant must establish […]

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IT WAS AN ABUSE OF DISCRETION TO STRIKE PLAINTIFF’S COMPLAINT BASED UPON AN ALLEGED FAILURE TO COMPLY WITH COURT-ORDERED DISCOVERY (THIRD DEPT). ​

The Third Department, reversing Supreme Court, determined it was an abuse of discretion to grant defendants’ motion to strike the complaint for plaintiff’s alleged failure to comply with discovery orders. Discovery had been ongoing for years with several conferences with the judge and several orders to comply with new discovery demands: … [I]t is undisputed […]

BY STATUTE FAMILY COURT MAY NOT SET A GOAL OF ADOPTION BY SOCIAL SERVICES WITHOUT ORDERING THE FILING OF A PETITION TO TERMINATE PARENTAL RIGHTS; HERE FAMILY COURT ATTEMPTED TO SET THE INCOMPATIBLE GOALS OF ADOPTION AND REUNIFICATION WITH THE PARENT; THE INTENT OF FAMILY COURT IS CLEAR (HOPED-FOR REUNIFICATION) BUT THERE IS NO STATUTORY AUTHORITY FOR THE METHOD CHOSEN BY THE COURT (THIRD DEPT).

The Third Department, reversing Family Court, determined that the goals set by Family Court, moving toward adoption of the child while setting another hearing to see if reunification of the child with mother is possible, were incompatible under the statutes. The intent of Family Court was clear, but the method was not allowed by statute. […]

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THE SUBCONTRACTORS DID NOT SIGN THE PRIMARY CONTRACT WHICH INCLUDED AN ARBITRATION PROVISION; HOWEVER THE SUBCONTRACTORS EXPLOITED THE ARBITRATION PROVISION BY PARTICIPATING IN PRE-ARBITRATION MEDIATION; THEREFORE THE SUBCONTRACTORS WERE ESTOPPED FROM COMPELLING LITIGATION (THIRD DEPT).

The Third Department, reversing Supreme Court, determined that the subcontractors, who did not sign the primary contract which included an arbitration provision in the “General Conditions,” had exploited the benefits of the primary contract and therefore should be compelled to arbitrate. The primary contract was between Corning Hospital and Gilbane, the general contractor. One subcontractor […]

FORMER SAME SEX PARTNER WHO AGREED TO THE CONCEPTION OF A CHILD CARRIED BY HER FORMER PARTNER DEMONSTRATED SHE HAD STANDING AS A PARENT TO SEEK PARENTING TIME WITH THE CHILD (THIRD DEPT). ​

The Third Department, in a full-fledged opinion by Justice Garry, determined that petitioner, who participated in the conception of the child (by artificial insemination) carried by her then same-sex partner, was a “parent” entitled to visitation (parenting time) with the child pursuant to Matter of Brooke S.B. v Elizabeth A.C.C. (28 NY3d 1 [2016]): … [T]he parties agreed […]

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DEFENDANT’S PRESENCE WHERE METHAMPHETAMINE WAS BEING PRODUCED AND APPARENT POSSESSION (IN A BACKPACK) OF CHEMICAL REAGENTS (BATTERIES AND SALT) USED IN METH PRODUCTION, WERE INSUFFICIENT TO DEMONSTRATE CONSTRUCTIVE POSSESSION OF METH LAB EQUIPMENT, CONVICTIONS REVERSED (THIRD DEPT).

The Third Department, reversing defendant’s convictions relating to his presence in an apartment where methamphetamine was being produced, determined the evidence did not support the defendant’s constructive possession of the relevant contraband in the apartment: … [W]e find that the evidence fell short of establishing that defendant constructively possessed the requisite items with the necessary […]

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THE BUILDING OWNER AND MANAGER WERE ADDITIONAL INSUREDS UNDER A POLICY ISSUED TO THE CONTRACTOR HIRED TO RENOVATE CONCRETE WALKWAYS; THE OWNER AND MANAGER ARE ENTITLED TO COVERAGE FOR A SLIP AND FALL ALLEGED TO HAVE BEEN CAUSED BY PAINTING THE WALKWAYS ALL THE SAME COLOR AND THEREBY DISGUISING A CHANGE IN ELEVATION (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Kapnick, determined plaintiffs are additional insureds under an insurance policy issued by defendant to nonparty Upgrade, the contractor hired to restore concrete catwalks. Plaintiffs, Windsor Apartments and Argo Real Estate, are entitled to coverage for a slip and fall in plaintiffs’ building allegedly caused by painting […]

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PLAINTIFF’S ALLEGATIONS OF RAPE AND SEXUAL ASSAULT BY DEFENDANT ARE SUFFICIENT TO ALLEGE A CAUSE OF ACTION UNDER NEW YORK CITY’S VICTIMS OF GENDER-MOTIVATED VIOLENCE PROTECTION LAW; THERE IS NO NEED TO ALLEGE SIMILAR ASSAULTS AGAINST OTHER WOMEN TO DEMONSTRATE ANIMUS ON THE BASIS OF GENDER (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Moulton, over a concurring opinion, determined that plaintiff’s complaint, alleging rape and sexual assault, stated a valid cause of action under New York City’s Victims of Gender-Motivated Violence Protection Law (VGM). The central question on appeal was the meaning of the term “animus.” Supreme Court held […]

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PLAINTIFF SUBMITTED EVIDENCE OF DEFENDANTS’ BREACH OF A STIPULATION OF SETTLEMENT; PLAINTIFF’S MOTION TO VACATE (RESCIND) THE STIPULATION SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion to vacate a stipulation of settlement should not have been granted without a hearing. Plaintiff presented evidence defendants breached the stipulation raising a question whether the stipulation should be rescinded: … [T]he plaintiff argued that the stipulation should be vacated because the defendants had “openly and […]

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