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Entries by Bruce Freeman

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PLAINTIFF ALLEGED DEFENDANT WAS LIABLE FOR HER BABY’S BRAIN DAMAGE BECAUSE DEFENDANT’S AMBULANCE BROKE DOWN ON THE WAY TO THE HOSPITAL, CAUSING A DELAY IN DELIVERY; DEFENDANT MUNICIPALITY, WHICH PROVIDED THE AMBULANCE, WAS ENGAGED IN A GOVERNMENTAL FUNCTION AND THERE WAS NO SPECIAL RELATIONSHIP WITH PLAINTIFF; THE MUNICIPALITY CAN NOT BE HELD LIABLE (SECOND DEPT).

The Second Department determined the complaint against the airport emergency medical service alleging liability for a delay in getting plaintiff to the hospital was properly dismissed. Plaintiff suffered complications giving birth which were alleged to have resulted in the baby suffering brain damage. The ambulance provided by defendant broke down and plaintiff was transferred to […]

DEFENDANT ALLEGED HE WAS NOT SERVED WITH THE SUMMONS AND COMPLAINT WITHIN 120 DAYS OF FILING AND PLAINTIFF DID NOT FILE AN AFFIDAVIT OF SERVICE WITH THE CLERK, DEFENDANT’S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION PROPERLY GRANTED (SECOND DEPT).

The Second Department determined defendant’s motion to dismiss the complaint for lack of personal jurisdiction was properly granted. Defendant alleged he was not served with the summons and complaint within 120 days of filing and plaintiff had not filed an affidavit of service with the clerk of the court: While the failure to timely file […]

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THE CONDITIONAL ORDER OF DISMISSAL WAS NOT AUTHORIZED BECAUSE ISSUE HAD NOT BEEN JOINED AT THE TIME THE ORDER WAS MADE; THE BANK’S MOTION TO VACATE THE CONDITIONAL ORDER IN THIS FORECLOSURE ACTION SHOULD HAVE BEEN GRANTED; AN UNAUTHORIZED SUPPLEMENTAL RECORD ON APPEAL TO WHICH THE PARTIES STIPULATED WAS NOT CONSIDERED (SECOND DEPT).

The Second Department determined the conditional order upon which dismissal of the complaint was based was not authorized because issue had not been joined at the time the order was made. Therefore the bank’s motion to vacate the conditional order in this foreclosure action should have been granted. However, because of the two year delay […]

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HEARSAY STATEMENTS ATTRIBUTED TO PLAINTIFF’S DECEDENT IN THIS MEDICAL MALPRACTICE ACTION NOT ADMISSIBLE AS ADMISSIONS OR BUSINESS RECORDS; THE DEAD MAN’S STATUTE PROHIBITED TESTIMONY ABOUT THE HEARSAY STATEMENTS; DEFENSE VERDICT REVERSED, NEW TRIAL ORDERED (SECOND DEPT). ​

The Second Department, reversing the defense verdict in this medical malpractice case and ordering a new trial, determined that hearsay statements to the effect that plaintiff’s decedent had signed an “against medical advice [AMA]” form when he allegedly refused treatment at defendant hospital were not admissible under the Dead Man’s Statute or as statements against […]

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THE 2008 FORECLOSURE ACTION WAS DISMISSED BECAUSE THE BANK DID NOT HAVE STANDING; THEREFORE THE DEBT WAS NOT ACCELERATED IN 2008 AND THE STATUTE OF LIMITATIONS FOR FORECLOSURE DID NOT START RUNNING; PLAINTIFF’S ACTION TO CANCEL AND DISCHARGE THE MORTGAGE PROPERLY DISMISSED (SECOND DEPT).

The Second Department determined plaintiff’s action to cancel and discharge a mortgage on the ground the statute of limitations for a foreclosure action had expired was properly dismissed. Although the bank had attempted to foreclose in 2008, that action was dismissed for lack of standing. Therefore the debt was not accelerated by the 2008 foreclosure proceedings: […]

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PLAINTIFF DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE OF DEFAULT PROVISION OF THE MORTGAGE; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the plaintiff did not demonstrate compliance with the notice of default provision in the mortgage. Therefore, the plaintiff’s motion for summary judgment in this foreclosure action should not have been granted: … [T]he plaintiff failed to establish, prima facie, that it complied with the condition precedent contained […]

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DOWNWARD DEPARTURE FROM LEVEL TWO TO LEVEL ONE WAS APPROPRIATE; DEFENDANT PARTICIPATED IN THE SEX TRAFFICKING CONSPIRACY WHILE SHE HERSELF WAS A VICTIM OF SEX TRAFFICKING (SECOND DEPT).

The Second Department, lowering defendant’s risk assessment from a lever two to level one, determined that defendant was herself a victim of sex trafficking and her participation in the conspiracy occurred at the same time that she was being exploited: … [T]he circumstances identified and proven by the defendant … are not accounted for by the […]

QUESTIONS OF FACT PRECLUDED SUMMARY JUDGMENT ON MOST (BUT NOT ALL) OF THE CAUSES OF ACTION IN THIS LABOR LAW 240 (1), 241 (6), 200, COMMON-LAW NEGLIGENCE AND INDEMNIFICATION ACTION STEMMING FROM A FALL INVOLVING A MAKESHIFT PLATFORM PLAINTIFF WAS USING TO INSTALL SPRINKLERS; THE DECISION HAS GOOD SUMMARIES OF THE ELEMENTS OF ALL OF THE CAUSES OF ACTION (SECOND DEPT).

The Second Department, in a substantive decision which explains the elements of Labor Law 240 (1), 241 (6), 200, common-law negligence and indemnification causes of action, determined questions of fact precluded summary judgment on most of the causes of action. Plaintiff was installing sprinklers and fell when he was attempting to position a plank he […]

FAILURE TO TIMELY MAIL THE SUMMONS AND COMPLAINT AFTER SERVICE AT DEFENDANT’S BUSINESS AS REQUIRED BY CPLR 308 (2) IS A JURISDICTIONAL DEFECT WHICH IS NOT CURED BY LATE MAILING (SECOND DEPT).

The Second Department determined plaintiff’s failure to timely mail a copy of the summons and complaint after serving the documents at defendant’s place of business was a jurisdictional defect which was not cured by late mailing: A mailing sent within the wrong time frame, like a mailing sent by the wrong method , increases the […]

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THE PEOPLE DID NOT SUBMIT SUFFICIENT PROOF THAT A PERIOD OF TIME SHOULD BE EXCLUDED FROM THE STATUTORY SPEEDY TRIAL CALCULATION, APPEAL HELD IN ABEYANCE AND MATTER SENT BACK FOR A HEARING AND REPORT (SECOND DEPT). ​

The Second Department, sending the matter back for a hearing on defendant’s statutory speedy-trial motion to dismiss, determined defendant had met his burden to show a delay greater that six months but the People did not present sufficient evidence that a period of time should be excluded from the speedy trial calculation: … [T]he defendant […]

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