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Entries by Bruce Freeman

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DISPUTE INVOLVING MALAYSIAN BANKS, INCLUDING GOLDMAN SACHS SINGAPORE, PROPERLY DISMISSED ON FORUM NON CONVENIENS GROUNDS (FIRST DEPT).

The First Department determined a dispute involving Goldman Sachs Singapore (GSS) was properly dismiss on forum non conveniens grounds: The action was properly dismissed on forum non conveniens grounds, given the unduly burdensome inquiry involved in determining personal jurisdiction in these circumstances and the balance of the forum non conveniens considerations … . The decision […]

FAMILY COURT SHOULD NOT HAVE CREDITED TO FATHER CHILD SUPPORT PAYMENTS HE MADE WHEN MOTHER WAS INTERFERING WITH HIS VISITATION (THIRD DEPT).

The Third Department noted that Family Court should not have credited back to father child support payments he made during the period when mother was interfering his visitation. Such a suspension of child support can only be made prospectively: … Family Court erred in suspending the father’s child support obligation from June 21, 2017 to February […]

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THE TRIAL JUDGE’S FAILURE TO PUT ON THE RECORD THE REASONS FOR REQUIRING DEFENDANT TO WEAR A STUN BELT WAS NOT A MODE OF PROCEEDINGS ERROR AND COUNSEL’S FAILURE TO OBJECT WAS NOT INEFFECTIVE ASSISTANCE, THE RELEVANT PROCEDURAL REQUIREMENTS WERE NOT ANNOUNCED BY THE COURT OF APPEALS UNTIL EIGHT YEARS AFTER THE TRIAL; THE LOSS OF TRIAL EXHIBITS DEMONSTRATING WHETHER THE PEREMPTORY JUROR CHALLENGES WERE EXHAUSTED IS HELD AGAINST THE DEFENDANT BECAUSE OF HIS FAILURE TO SEEK A TIMELY RECONSTRUCTION HEARING (FOURTH DEPT)

The Fourth Department affirmed defendant’s murder conviction and the denial of his motion to vacate the judgment of conviction in a decision addressing several substantive issues not summarized here. The trial court’s failure to put on the record the reasons for requiring defendant to wear a stun belt during trial was not a mode of […]

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PLAINTIFFS DID NOT DEMONSTRATE DEFENDANT HAD ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF THE DOG’S VICIOUS PROPENSITIES IN THIS DOG BITE CASE, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FOURTH DEPT). ​

The Fourth Department determined defendant’s motion for summary judgment in this dog bit case should have been granted.  The evidence that the dog had barked at a neighbor did not demonstrate defendant was made aware of the incident and did not demonstrate when the incident occurred: Even assuming, arguendo, that the dog possessed the requisite […]

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PLAINTIFF LOAN SERVICING COMPANY WAIVED THE TIME OF THE ESSENCE PROVISION BY ITS RELENTLESS EFFORTS TO PREVENT THE FORECLOSURE SALE TO THE HIGHEST BIDDER (TO EXACT A HIGHER PRICE); THE SANCTIONS IMPOSED ON PLAINTIFF WERE NOT SUPPORTED BY A WRITTEN DECISION AS REQUIRED BY THE CONTROLLING REGULATION; SANCTIONS ASPECT REMITTED (FOURTH DEPT).

The Fourth Department determined plaintiff loan company waived the time of the essence provision in this foreclosure sale to the highest bidder, Fox, by its relentless attempts to prevent the sale from going forward (to exact a higher purchase price). The Fourth Department noted that the sanctions imposed upon plaintiff were not supported by a […]

DEFENDANTS’ USE OF DOMAIN NAMES VERY SIMILAR TO PLAINTIFF’S STATED CAUSES OF ACTION FOR UNFAIR COMPETITION AND CYBERSQUATTING (FOURTH DEPT).

The Fourth Department determined plaintiff had stated causes of action for unfair competition and cybersquatting by using domain names similar to plaintiff’s: … [D[efendants … operate a website accessed at idealyou.com. In 2016, … plaintiff…, established a competing business that operates a website accessed at idealbuff.com. … … [O]n the day plaintiff opened her business, defendants […]

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A COURT MAY CONVERT A MOTION TO DISMISS TO A MOTION FOR SUMMARY JUDGMENT WITHOUT NOTICE WHERE A PURE QUESTION OF LAW IS INVOLVED; THE STRICTER STANDARDS FOR NON-COMPETITION AGREEMENTS IN THE EMPLOYMENT CONTEXT DO NOT APPLY IN THE CONTEXT OF THE SALE OF A BUSINESS (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, noted that Supreme Court properly dispensed with notice when it converted a motion to dismiss to a motion for summary judgment on a contractual-interpretation issue, and further noted the difference between non-competition agreements in the employment context and in the sale-of-a-business context. Here defendant sold his business, including […]

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DEFENDANT’S MOTION TO SET ASIDE THE VERDICT, BASED UPON A JUROR’S KNOWLEDGE AND CONDUCT, SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING (FOURTH DEPT).

The Fourth Department determined defendant’s motion to set aside the verdict, based upon a connection between a juror and defendant’s mother, should not have been denied without a hearing: … [T]he court erred in summarily denying his motion to set aside the verdict pursuant to CPL 330.30 (2). The sworn allegations in support of defendant’s […]

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PLAINTIFF DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE/MAILING REQUIREMENTS AND THEREFORE DID NOT DEMONSTRATE PERSONAL JURISDICTION OVER DEFENDANTS, THE REFEREE’S REPORT SHOULD NOT HAVE BEEN CONFIRMED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the referee’s report in this foreclosure action should not have been confirmed because plaintiff did not demonstrate compliance with the notice requirements: … [T]he Supreme Court should not have confirmed the Referee’s report. The plaintiff failed to submit any evidence at the hearing of compliance with the mailing requirement […]

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