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Entries by Bruce Freeman

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PLAINTIFF’S VERDICT IN THIS PERSONAL INJURY ACTION BROUGHT BY A FIREFIGHTER PURSUANT TO GENERAL MUNICIPAL LAW 205-a AND LABOR LAW 27-a SHOULD NOT HAVE BEEN SET ASIDE, CRITERIA FOR SETTING ASIDE A VERDICT EXPLAINED IN DEPTH (SECOND DEPT).

The Second Department reversed Supreme Court’s setting aside the verdict in this personal injury action brought by a firefighter pursuant to General Municipal Law 205-a and Labor Law 27-a. The firefighter alleged he tripped over a torn rug in the fire department office. The torn rug violated provisions of the NYC Administrative Code. The Second Department […]

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MOTION TO QUASH SUBPOENA ISSUED TO ATTORNEY WHO REPRESENTED THE ORIGINAL BORROWERS AGAINST PROPERTY SUBJECT TO FORECLOSURE PROCEEDINGS SHOULD NOT HAVE BEEN QUASHED, CIVIL CONTEMPT ACTION AGAINST THE ATTORNEY SHOULD NOT HAVE BEEN DISMISSED, CRITERIA FOR BOTH TYPES OF PROCEEDINGS EXPLAINED (SECOND DEPT).

The Second Department determined the subpoona issued by the current owners of property subject to a foreclosure action (the Frankels) to the attorney (Satran) who represented the parties who initially took out the loan (the Confinos) should not have been quashed, the action for civil contempt against the attorney should not have been dismissed, and attorney-client […]

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BANK DID NOT SUBMIT SUFFICIENT PROOF OF A LOST NOTE AND COMPLIANCE WITH NOTICE REQUIREMENTS IN THIS FORECLOSURE ACTION; SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, modifying Supreme Court, determined the bank, inter alia,  did not demonstrate compliance with the RPAPL 1304 notice provisions and failed to submit sufficient proof of a lost note in this foreclosure action: … [A]lthough the plaintiff came forward with evidence establishing that the note was assigned to it and establishing the note’s […]

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FACT THAT DEFENDANT CONTRACTOR HAD BEEN ISSUED A PERMIT FOR DRILLING IN THE STREET DID NOT RAISE A QUESTION OF FACT ABOUT WHETHER THE CONTRACTOR CREATED A DEFECT IN THE SIDEWALK IN THIS SLIP AND FALL CASE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the contractor’s motion for summary judgment in this sidewalk slip and fall case should have been granted. The contractor presented evidence it did no work on the sidewalk. The fact that a permit for drilling on the street had been issued to the contractor did not raise a […]

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PROTRACTED DELAY IN PLAINTIFFS’ SEEKING SUBSTITUTION OF PARTIES IN THIS MEDICAL MALPRACTICE ACTION AFTER INFANT PLAINTIFF’S DEATH DID NOT REQUIRE DISMISSAL OF THE COMPLAINT, DEFENDANTS WERE IN POSSESSION OF THE MEDICAL RECORDS AND OTHER RELEVANT INFORMATION AND THEREFORE WERE NOT PREJUDICED BY THE DELAY; IN ADDITION, THE MOTION TO AMEND THE COMPLAINT TO ADD WRONGFUL DEATH SHOULD HAVE BEEN GRANTED UNDER THE RELATION-BACK DOCTRINE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiffs’ protracted delay in substituting father for the deceased infant in this medical malpractice action did not require dismissal of the complaint because the defendants were in possession of all the relevant medical records and therefore were not prejudiced by the delay. The court also noted that motion […]

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BRIEF PARTICIPATION IN JURY DELIBERATIONS BY AN ALTERNATE WHILE A SWORN JUROR WAS ABSENT VIOLATED DEFENDANT’S CONSTITUTIONAL RIGHT TO A JURY OF 12, DEFENDANT’S MOTION FOR A MISTRIAL SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that defendant’s motion for a mistrial should have been granted after the judge learned that an alternate juror had participated in the jury deliberations while a sworn juror was absent. The trial judge denied the mistrial motion after receiving assurances from all the sworn jurors that they could […]

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DEFINITION OF ‘PARENT’ IS THE SAME FOR PARENTAL ACCESS AND CUSTODY; JUDICIAL ESTOPPEL AND COLLATERAL ESTOPPEL DOCTRINES PRECLUDED SUPREME COURT’S FINDING THAT FATHER DID NOT HAVE STANDING IN THE CUSTODY MATTER (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the doctrines of judicial estoppel and collateral estoppel precluded Family Court from finding father did not have standing to seek custody of a child. Father had previously been deemed a “parent” in the context of parental access. The definition of “parent” is the same in the context of […]

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FAMILY COURT DID NOT HAVE A SUFFICIENT BASIS, I.E. STATEMENTS BY A CASEWORKER AND THE ATTORNEY FOR THE CHILD, TO DETERMINE NEW YORK HAD BEEN DIVESTED OF JURISDICTION IN THIS CUSTODY CASE; MOTHER WAS NOT ADEQUATELY INFORMED OF HER RIGHT TO COUNSEL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the judges should not have dismissed mother’s petition to modify custody solely on the basis of statements made by a caseworker and the attorney for the child indicating the child lived in New Jersey. The Second Department further found that Family Court did not adequately inform mother […]

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SUPREME COURT SHOULD NOT HAVE DENIED PLAINTIFF’S REQUEST FOR A PRELIMINARY INJUNCTION WITHOUT A HEARING AND THE TEMPORARY RESTRAINING ORDER SHOULD NOT HAVE BEEN VACATED WITHOUT A HEARING, DEFENDANTS WERE SEEKING TO TERMINATE PLAINTIFF’S DIALYSIS TREATMENT BASED UPON SHARPLY CONFLICTING EVIDENCE OF PLAINTIFF’S BEHAVIOR (FIRST DEPT).

The First Department, reversing Supreme Court, determined the the temporary restraining order (TRO) preventing defendant dialysis provider from stopping plaintiff’s treatment should not have been vacated and plaintiff’s request for a preliminary injunction should have been denied without a hearing. The dialysis provider, Avantus, wanted to discontinue treatment because of plaintiff’s behavior. However the evidence of […]

ACTION BROUGHT BY EUROPEAN PLAINTIFFS CONCERNING THE OWNERSHIP OF A PAINTING ILLEGALLY CONFISCATED BY THE NAZIS AND SOLD IN NEW YORK BY CHRISTIE’S PROPERLY DISMISSED ON FORUM NON CONVENIENS GROUNDS (FIRST DEPT). ​

The First Department determined a lawsuit to determine ownership of a Degas painting illegally confiscated by Nazis and years later sold at a Christie’s auction in New York was properly dismissed on forum non conveniens.  The plaintiffs’ rights arose in Germany and France and Swiss and French estate law apply: The motion court properly dismissed […]

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