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Entries by Bruce Freeman

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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 […]

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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 […]

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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 […]

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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 […]

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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 […]

ALTHOUGH THE MARRIAGE WAS A NULLITY, DEFENDANT IS ENTITLED TO MAINTENANCE AND EQUITABLE DISTRIBUTION (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined that defendant’s motion for maintenance and equitable distribution should have been granted, despite the finding that the marriage was a nullity because the plaintiff-husband was not yet legally divorced when he married defendant: The Supreme Court erred in denying the defendant’s request for maintenance and equitable distribution on the […]

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BANK DID NOT SUBMIT SUFFICIENT PROOF OF DEFENDANT’S DEFAULT OR COMPLIANCE WITH RPAPL 1304 NOTICE REQUIREMENTS; THE BANK’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank’s (Chase’s) motion for summary judgment in this foreclosure action should not have been granted, The court held: (1) the conclusory affidavit submitted by the bank  to prove defendant’s default had no probative value, the business record itself should have been provided; (2) compliance with the mailing provisions […]

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STACKED BOXES NOT AN OPEN AND OBVIOUS CONDITION AS A MATTER OF LAW IN THIS SLIP AND FALL CASE; TENANT’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED; LANDLORD DID NOT DEMONSTRATE IT WAS AN OUT-OF-POSSESSION LANDLORD; HOWEVER, LANDLORD ESTABLISHED IT DID NOT CREATE OR HAVE NOTICE OF THE CONDITION (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court determined the landlord did not demonstrate it was an out-of-possession landlord in this slip and fall case. But the landlord did demonstrate it did not create of have notice of the stacked boxes which allegedly caused plaintiff’s slip and fall. The stacked boxes did not constitute an open […]

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QUESTION OF FACT WHETHER CONTRACTORS WHICH DID SIDEWALK/GRATE WORK LAUNCHED AN INSTRUMENT OF HARM IN THIS SLIP AND FALL CASE; THE CONTRACTORS’ MOTIONS FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the actions against two contractors (MPM and VRD) which did sidewalk/grate work should not have been dismissed in this slip and fall case. The two contractor defendants did not demonstrate, as a matter of law, that they did not launch an instrument of harm: In general, a contractual […]

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EXPERT’S OPINION THAT DEFENDANT’S IMPROPER INSTALLATION OF A SIDEWALK/MANHOLE CAUSED THE SIDEWALK HEIGHT DIFFERENTIAL IN THIS SLIP AND FALL CASE WAS NOT SUPPORTED BY EVIDENCE IN THE RECORD; THE DEFENSE MOTION TO SET ASIDE THE VERDICT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court. determined the motion to set aside the verdict in this slip and fall case should have been granted. Although plaintiff’s expert was properly qualified, his opinion that defendant’s improper installation of the sidewalk/manhole caused the sidewalk height-differential over which plaintiff tripped and fell was not supported by evidence in […]

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