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Entries by Bruce Freeman

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ALTHOUGH A REFERRING PHYSICIAN CAN NOT BE VICARIOUSLY LIABLE FOR THE NEGLIGENCE OF THE PHYSICIAN TO WHOM THE PATIENT WAS REFERRED, THE REFERRING PHYSICIAN MAY BE LIABLE FOR HER OWN NEGLIGENCE WITH RESPECT TO CONFERRING WITH THE OTHER PHYSICIAN ABOUT THEIR DIFFERENT FINDINGS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the motion for summary judgment by one of the two doctors who examined plaintiff (Dr. Andreyko) should not have been granted: Although a medical provider cannot be held vicariously liable for the malpractice of a physician to whom a patient is referred, the referring medical provider may be […]

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JUDGES SHOULD NOT ASK A DEFENDANT WHETHER HE OR SHE IS A US CITIZEN IN PLEA PROCEEDINGS; RATHER JUDGES SHOULD INFORM ALL DEFENDANTS THE PLEA TO A FELONY MAY RESULT IN DEPORTATION IF HE OR SHE IS NOT A US CITIZEN (SECOND DEPT).

The Second Department, over a concurrence, rejected defendant’s argument that his plea was involuntary because he was not informed he would be deported as a consequence of the plea. There was no indication in the record that plaintiff was not a US citizen. Defendant told the court he was a citizen. And the pre-sentence report […]

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THE SEARCH WARRANT WHICH ALLOWED THE SEIZURE OF BUSINESS COMPUTERS, COMPUTER FILES AND BUSINESS DOCUMENTS WITH ONLY A DATE-RESTRICTION AMOUNTED TO A GENERAL WARRANT, THE SEIZED ITEMS SHOULD HAVE BEEN SUPPRESSED (SECOND DEPT).

The Second Department, reversing Supreme Court, over a dissent, determined the search warrant for business computers, computer files and documents amounted to a general warrant, and the items seized should have been suppressed. The warrant was procured by the Office of Attorney General (OAG) and targeted two realty companies which were alleged to have involvement […]

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PLAINTIFF FAILED TO PROVE COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 1304, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the plaintiff’s (PennyMac’s) motion for summary judgment in this foreclosure action should not have been granted. Plaintiff did not present sufficient proof of compliance with the notice requirements of RPAPL 1304: … [A]lthough Somarriba and Carras-Gomez “stated in [their] affidavit[s] that the RPAPL 1304 notices were mailed by […]

COURT SHOULD NOT HAVE AWARDED PLAINTIFF WIFE $25,000 AS AN INTEREST IN HER HUSBAND’S MBA DEGREE; MARITAL ASSETS WERE USED TO PROCURE THE DEGREE AND THE COST OF THE DEGREE IS NOT A PROPER BASIS FOR SUCH AN AWARD (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined plaintiff wife in this divorce action should not have been awarded $25,000 for her interest in her husband’s MBA degree: At the time that this action was commenced, an academic degree earned during a marriage constituted marital property subject to equitable distribution ( … cf. Domestic Relations Law […]

FATHER’S PETITION FOR SOLE CUSTODY SHOULD NOT HAVE BEEN GRANTED ABSENT A FULL HEARING (SECOND DEPT).

The Second Department, reversing Family Court, determined father’s petition for sole custody should not have been granted absent a full hearing: By “Agreed Order in Suit Affecting the Parent-Child Relationship” (hereinafter the Texas custody order) dated October 4, 2016, which was so-ordered by the District Court, Harris County, Texas, the parties agreed to be appointed […]

MOTION FOR A DECLARATORY JUDGMENT SHOULD NOT HAVE BEEN GRANTED BECAUSE THERE WAS NO DEMAND FOR DECLARATORY RELIEF IN THE PLEADINGS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the motion for a declaratory judgment should not have been granted because declaratory relief was not in the pleadings: … Supreme Court should have denied the … motion for a declaration that the contract and its amendments are null and void, because that declaratory relief was not demanded in […]

REMOVAL OF THE CHILD FROM MOTHER’S CARE WAS NOT WARRANTED, NO SHOWING OF AN IMMINENT THREAT TO THE CHILD’S LIFE OR HEALTH (SECOND DEPT).

The Second Department, reversing Family Court, determined the child should not have been removed for the mother’s care because there was not showing of an imminent threat to the child’s life or health: Upon a hearing pursuant to Family Court Act § 1027, “temporary removal is only authorized where the court finds it necessary to […]

MOTION TO AMEND THE BILL OF PARTICULARS MADE AFTER THE NOTE OF ISSUE WAS FILED SHOULD HAVE BEEN GRANTED DESPITE THE ABSENCE OF A GOOD EXCUSE FOR THE DELAY; THE MOTION HAD MERIT, DID NOT PRESENT ANY NEW THEORIES AND SOUGHT TO NARROW THE ISSUES FOR TRIAL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiffs’ motion to amend the bill of particulars should have been granted, even though the motion was made after the note of issue was filed and there was no good excuse for the delay: … “[L]eave to amend a bill of particulars may properly be granted, even after […]

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