Bruce Freeman – Page 688 – New York Appellate Digest

About Bruce Freeman

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Entries by Bruce Freeman

JUDGE SHOULD NOT HAVE, SUA SPONTE, GRANTED A MOTION TO AMEND THE COMPLAINT IN THE ABSENCE OF A MOTION AND PROPOSED PLEADINGS (FIRST DEPT).

The First Department, reversing Supreme Court, determined the judges should have, sua sponte, granted plaintiff leave to file a second amended complaint in the absence of a motion and a proposed pleading. The leave to amend was vacated: The motion court should not have sua sponte granted plaintiff leave to file a second amended complaint […]

November 14, 2019

Appeals, Criminal Law

A JUROR’S ATTEMPT TO DEVELOP A RELATIONSHIP WITH A JAILED COOPERATING PROSECUTION WITNESS DURING DELIBERATIONS EXHIBITED ACTUAL AND IMPLIED BIAS REQUIRING A NEW TRIAL; A HARMLESS ERROR ANALYSIS IS NOT APPLICABLE (FIRST DEPT).

The First Department, reversing defendant’s conviction and ordering a new trial, in a full-fledged opinion by Justice Renwick, determined that a juror who attempted to develop a relationship with a jailed cooperating prosecution witness during deliberations exhibited actual and implied bias, thereby depriving defendant of a fair trial. Although the juror and the witness were not […]

November 14, 2019

Civil Procedure, Contract Law, Evidence, Foreclosure, Real Property Actions and Proceedings Law (RPAPL)

THE BANK DID NOT PRESENT SUFFICIENT PROOF OF COMPLIANCE WITH THE NOTICE OF DEFAULT PROVISIONS OF THE MORTGAGE; THE BANK NEED NOT AFFIRMATIVELY ADDRESS COMPLIANCE WITH RPAPL 1304 NOTICE REQUIREMENTS IF THE ISSUE IS NOT RAISED IN THE ANSWER; REPLY PAPERS CAN PRESENT EVIDENCE FOR THE FIRST TIME IN RESPONSE TO ISSUES FIRST RAISED IN OPPOSITION TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; BUT REPLY PAPERS MAY NOT PRESENT, FOR THE FIRST TIME, EVIDENCE ADDRESSING AN ISSUE RAISED IN THE DEFENDANT’S ANSWER (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the plaintiff bank (Aurora) did not provide sufficient proof of providing notice of default to defendants. The Second Department noted that the bank need not affirmatively prove compliance with the notice requirements of RPAPL 1304 because the issue was not raised in defendant’s answer. The court also noted […]

November 13, 2019

Family Law

MOTHER’S MOTION TO VACATE THE ORDER FINDING SHE HAD NEGLECTED THE CHILDREN SHOULD HAVE BEEN GRANTED; MOTHER DEMONSTRATED SUCCESSFUL EFFORTS TO ADDRESS HER MENTAL HEALTH AND PARENTING SKILLS (SECOND DEPT).

The Second Department, reversing Family Court, determined mother’s motion to vacate the order finding she had neglected the children should have been granted: In May 2018, the mother moved pursuant to Family Court Act § 1061 to vacate so much of the order of fact-finding and disposition as, upon her consent to the entry of […]

November 13, 2019

Family Law

FAMILY COURT SHOULD NOT HAVE MADE RULINGS ON CUSTODY AND MOTHER’S PETITION TO RELOCATE BEFORE COMPLETING THE HEARING (SECOND DEPT).

The Second Department, reversing Family Court, determined Family Court should not have awarded sole custody of daughter to mother and granted mother’s petition to relocate without completing the hearing: The mother commenced this proceeding against the father seeking to modify a prior order of custody so as to award her sole legal and physical custody […]

November 13, 2019

Administrative Law, Landlord-Tenant, Municipal Law

THE LOFT BOARD PROPERLY REJECTED TENANTS’ REQUEST TO WITHDRAW THEIR APPLICATIONS FOR COVERAGE UNDER THE LOFT LAW FOLLOWING A SETTLEMENT AGREEMENT WITH THE LANDLORD; HERE THE LANDLORD HELD COMMERCIAL PROPERTY WHICH INCLUDED THE TENANTS’ RESIDENCES IN THE ABSENCE OF A CERTIFICATE OF OCCUPANCY; THE LANDLORD HAD SETTLED WITH THE TENANTS, AGREEING TO OBTAIN A CERTIFICATE OF OCCUPANCY AND CONVERT THE PROPERTY TO RENT STABILIZED RESIDENCES (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined: (1) the settlement agreement between that landlord and tenants providing that the landlord would take steps to obtain a certificate of occupancy and convert the property into rent stabilized residences should not have been annulled in its entirety; (2) the tenants’ attempt, based on the settlement, to […]

November 13, 2019

Appeals, Attorneys

THE 2ND DEPARTMENT IMPOSED SANCTIONS ON A LAW FIRM FOR FAILING TO IMMEDIATELY NOTIFY THE APPELLATE COURT THAT A MATTER WITH A PENDING APPEAL HAD BEEN SETTLED (SECOND DEPT).

The Second Department imposed a $250 sanction on a law firm which failed to timely notify the appellate court that a matter in a pending appeal had been settled: Precisely in order to alert counsel that their obligation to give immediate notification of a settlement may not be postponed or delayed, this Court adopted its […]

November 13, 2019

Evidence, Negligence

PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS REAR-END TRAFFIC ACCIDENT CASE SHOULD HAVE BEEN GRANTED; THE ABSENCE OF COMPARATIVE FAULT NO LONGER NEED BE SHOWN (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment in this rear-end collision case should have been granted, noting that a plaintiff need not demonstrate the absence of comparative fault: A plaintiff is no longer required to show freedom from comparative fault to establish her or his prima facie entitlement to judgment […]

November 13, 2019

Civil Procedure, False Arrest, Malicious Prosecution

COMPLAINT DID NOT STATE CAUSES OF ACTION FOR FALSE ARREST AND MALICIOUS PROSECUTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the complaint did not state causes of action for false arrest and malicious prosecution: “A civilian defendant who merely furnishes information to law enforcement authorities, who are then free to exercise their own independent judgment as to whether an arrest will be made and criminal charges filed, will […]

November 13, 2019

Civil Procedure, Evidence, Foreclosure, Uniform Commercial Code

THE UCC CRITERIA FOR PROOF OF POSSESSION OF A LOST NOTE WERE NOT MET; PLAINTIFF BANK THEREFORE DID NOT DEMONSTRATE IT HAD STANDING TO BRING THE FORECLOSURE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank did not demonstrate it had standing to bring the foreclosure action. The UCC’s requirements for demonstrating ownership of a lost note were not met: … [T]he affidavit of possession of the original note, sworn to by a vice president of loan documentation for the plaintiff, does […]

November 13, 2019

About Bruce Freeman

Entries by Bruce Freeman

JUDGE SHOULD NOT HAVE, SUA SPONTE, GRANTED A MOTION TO AMEND THE COMPLAINT IN THE ABSENCE OF A MOTION AND PROPOSED PLEADINGS (FIRST DEPT).

A JUROR’S ATTEMPT TO DEVELOP A RELATIONSHIP WITH A JAILED COOPERATING PROSECUTION WITNESS DURING DELIBERATIONS EXHIBITED ACTUAL AND IMPLIED BIAS REQUIRING A NEW TRIAL; A HARMLESS ERROR ANALYSIS IS NOT APPLICABLE (FIRST DEPT).

MOTHER’S MOTION TO VACATE THE ORDER FINDING SHE HAD NEGLECTED THE CHILDREN SHOULD HAVE BEEN GRANTED; MOTHER DEMONSTRATED SUCCESSFUL EFFORTS TO ADDRESS HER MENTAL HEALTH AND PARENTING SKILLS (SECOND DEPT).

FAMILY COURT SHOULD NOT HAVE MADE RULINGS ON CUSTODY AND MOTHER’S PETITION TO RELOCATE BEFORE COMPLETING THE HEARING (SECOND DEPT).

THE 2ND DEPARTMENT IMPOSED SANCTIONS ON A LAW FIRM FOR FAILING TO IMMEDIATELY NOTIFY THE APPELLATE COURT THAT A MATTER WITH A PENDING APPEAL HAD BEEN SETTLED (SECOND DEPT).

PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS REAR-END TRAFFIC ACCIDENT CASE SHOULD HAVE BEEN GRANTED; THE ABSENCE OF COMPARATIVE FAULT NO LONGER NEED BE SHOWN (SECOND DEPT).

COMPLAINT DID NOT STATE CAUSES OF ACTION FOR FALSE ARREST AND MALICIOUS PROSECUTION (SECOND DEPT).

THE UCC CRITERIA FOR PROOF OF POSSESSION OF A LOST NOTE WERE NOT MET; PLAINTIFF BANK THEREFORE DID NOT DEMONSTRATE IT HAD STANDING TO BRING THE FORECLOSURE ACTION (SECOND DEPT).

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