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Entries by Bruce Freeman

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DEFENDANT’S STATEMENT TO HIS MOTHER, ON THE PHONE, ABOUT NEEDING THE ASSISTANCE OF AN ATTORNEY SHOULD NOT HAVE BEEN ADMITTED IN EVIDENCE, ERROR WAS HARMLESS HOWEVER (SECOND DEPT).

The Second Department determined a statement defendant made to his mother about needing the assistance of an attorney should not have been admitted. The error was deemed harmless however: We agree with the defendant that the Supreme Court should not have admitted into evidence a statement the defendant made to his mother, during a recorded […]

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CHILD CONCEIVED WITH AN EGG FROM AN ANONYMOUS DONOR AND CARRIED BY A GESTATIONAL SURROGATE PURSUANT TO AN UNPAID SURROGACY CONTRACT MAY BE ADOPTED BY THE BIOLOGICAL FATHER (SECOND DEPT).

The Second Department, reversing Family Court, determined the biological father of a child conceived with an egg from an anonymous donor and carried by a gestational surrogate can adopt the child. Family Court had held that the unpaid surrogacy contract was against public policy and should not be legitimized by adoption. Family Court also held […]

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HARDSHIP WAIVER TO ALLOW CONSTRUCTION OF A SINGLE FAMILY HOME IN THE CORE PRESERVATION AREA OF THE LONG ISLAND CENTRAL PINES BARRENS PROPERLY DENIED, ACCOMPANYING ACTION FOR DECLARATORY JUDGMENT SHOULD NOT HAVE BEEN SUMMARILY DENIED, SUA SPONTE, BY THE JUDGE BECAUSE THERE WAS NO REQUEST FOR THAT RELIEF (SECOND DEPT).

The Second Department, modifying Supreme Court, determined that the Article 78 petition for a hardship waiver to allow petitioner to build a single family residence on property within the core preservation area of the Long Island Central Pines Barrens was properly denied. However, the accompanying declaratory judgment action (alleging the denial of the waiver was […]

REMOVING PORTABLE LIGHTING EQUIPMENT IS NOT ‘ALTERING’ A STRUCTURE WITHIN THE MEANING OF LABOR LAW 240(1), DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that plaintiff (McCarthy) was not engaged in activity covered by Labor Law 240 (1) when he fell from the roof of a broadcast booth when removing portable lighting: … [T]he defendants established their prima facie entitlement to judgment as a matter of law dismissing the cause of action […]

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DOCUMENTARY EVIDENCE SUBMITTED IN SUPPORT OF THE MOTION TO DISMISS DID NOT MEET THE CRITERIA REQUIRED BY CPLR 3211(a)(1) (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant insurer’s (Reliastar’s) motion to dismiss based on documentary evidence should not have been granted. Plaintiffs sued for breach of contract when Reliastar canceled the life insurance policy: “To succeed on a motion to dismiss based upon documentary evidence pursuant to CPLR 3211(a)(1), the documentary evidence must utterly refute […]

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SUPREME COURT SHOULD HAVE GRANTED PLAINTIFF’S MOTION TO AMEND THE COMPLAINT, DESPITE THE PASSAGE OF SIX YEARS SINCE THE ACTION WAS COMMENCED, THE COURT DOES NOT EXAMINE THE MERITS OF THE PLEADING UNLESS THE LACK OF MERIT IS CLEAR AND FREE FROM DOUBT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion to amend its complaint, which originally stemmed from the alleged encroachment of defendant’s pipes (since removed), should have been granted, despite the passage of six years (during which a default judgment was vacated): The Supreme Court should have granted that branch of the plaintiff’s cross motion […]

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SUPREME COURT SHOULD HAVE SUMMONED A NECESSARY PARTY WHICH WAS SUBJECT TO THE JURISDICTION OF THE COURT PURSUANT TO CPLR 1001; SUPREME COURT SHOULD HAVE GRANTED PLAINTIFF’S SECOND MOTION FOR AN EXTENSION OF TIME TO SERVE A DEFENDANT IN THE INTEREST OF JUSTICE, DESPITE THE EXPIRATION OF THE STATUTE OF LIMITATIONS AND LAW-OFFICE-FAILURE EXCUSE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank’s second motion to extend the time to serve defendant (Bandolos). after the statute of limitations had run, should have been granted. The court further held that Supreme Court should have summoned a necessary party (Mother of Pearl, the record owner) because the party was subject to […]

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DESPITE LOSS OF THE NOTE, THE BANK CAN DEMONSTRATE STANDING WITH A LOST NOTE AFFIDAVIT WHICH MEETS THE REQUIREMENTS OF UCC 3-803 (SECOND DEPT).

The Second Department determined plaintiff bank properly established standing in this foreclosure proceeding, despite the note having been lost, with a lost note affidavit which met the requirements of UCC 3-803: … “[P]ursuant to UCC 3-804, the owner of a lost note may maintain an action upon due proof of [1] his [or her] ownership, [2] […]

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SEARCH OF A SUITCASE WAS A VALID SEARCH INCIDENT TO ARREST JUSTIFIED BY EXIGENT CIRCUMSTANCES, DESPITE THE FACT THAT DEFENDANT HAD BEEN HANDCUFFED AND WAS IN THE PRESENCE OF AS MANY AS EIGHT POLICE OFFICERS (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Webber, over an extensive, two-justice dissenting opinion, determined that the search of a suitcase was a valid search incident to arrest, even though defendant, who had let go of the suitcase, had been handcuffed. Defendant had been observed by the arresting officer (Ayala) coming out of […]

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PLAINTIFF’S BREACH-OF-AN-EMPLOYMENT-CONTRACT ACTION SHOULD NOT HAVE BEEN DISMISSED, DESPITE THE FACT THAT DEFENDANT NEVER SIGNED IT (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s breach-of-an-employment-contract action should not have been dismissed. The defendant never signed the contract. However, plaintiff performed and was paid according to the contract. When plaintiff was terminated, defendant refused to pay the six month’s severance which was provided for in the contract: The fact that defendant never signed […]

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