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Entries by Bruce Freeman

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SURR0GATE’S COURT PROPERLY DENIED THE ADMINISTRATOR’S PETITION FOR AUTHORITY TO CONDUCT A SHORT SALE OF DECEDENT’S REAL PROPERTY WHICH WAS WORTH SUBSTANTIALLY LESS THAN THE MORTGAGE WHICH ENCUMBERED THE PROPERTY, CONCLUSORY ASSERTIONS IN THE PETITION INSUFFICIENT (SECOND DEPT).

The Second Department determined Surrogate’s Court properly denied the petition by the administrator of decedent’s estate seeking authority to conduct a “short sale” of real property that was worth substantially less than the mortgage which encumbered the property. Surrogate’s Court determined the proof offered in support of the petition fell short in several respects: A […]

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THE ARTICLE 78 PETITION SEEKING REVIEW OF THE DENIAL OF VARIANCES BY THE ZONING BOARD SHOULD NOT HAVE BEEN DISMISSED ON THE GROUND THAT PETITIONER DID NOT PROVIDE A TRANSCRIPT OF THE PROCEEDINGS, UNDER THE CPLR THE RESPONDENT MUST PROVIDE THE TRANSCRIPT (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the petition seeking review of the zoning board’s denial of variances should not have been dismissed on the ground that petitioner did not provide a transcript of the proceedings. CPLR 7804 requires that the respondent provide the transcript: The Supreme Court denied the petition and dismissed the proceeding […]

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DEFENDANT DRIVER’S CLAIM HE COULDN’T STOP BECAUSE HIS CAR SKIDDED ON WET METAL GRATING DID NOT ESTABLISH THE REAR-END COLLISION WAS UNAVOIDABLE, PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that plaintiffs were entitled to summary judgment in this rear-end collision case. The defendants’ claim that the defendant driver, Flippen, couldn’t stop because the skidded on wet metal grating did not raise a question of fact: “[A] rear-end collision with a stopped or stopping vehicle establishes a prima facie […]

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INFORMATION PROVIDED FOR THE FIRST TIME IN A REPLY TO OPPOSITION TO A SUMMARY JUDGMENT MOTION CAN NOT BE RELIED UPON TO MAKE OUT A PRIMA FACIE CASE, THE APPELLANT’S MOTION FOR SUMMARY JUDGMENT IN THIS ON THE JOB INJURY CASE ON THE GROUND THAT APPELLANT WAS PLAINTIFF’S GENERAL EMPLOYER AND PLAINTIFF’S ONLY REMEDY WAS WORKERS’ COMPENSATION PROPERLY DENIED (SECOND DEPT).

The Second Department determined that information provided for the first time in a reply affidavit could not be relied upon to sustain a movant’s prima facie burden for a summary judgment motion. The plaintiff, who was injured on the job, alleged he was hired by the defendant Bright Star Messenger Service, LLC (hereinafter the appellant). In […]

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DISCOVERY OF PRIOR ASSAULTS IN THIS STUDENT ON STUDENT THIRD-PARTY ASSAULT CASE SHOULD NOT HAVE BEEN LIMITED TO PRIOR SEXUAL ASSAULTS AND PRIOR ASSAULTS BETWEEN THE TWO STUDENTS, ASSAULTS OF ANY KIND MAY HAVE PUT THE SCHOOL ON NOTICE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that discovery in this third-party assault (negligent supervision) case should not have been restricted to prior sexual assaults in the school and prior assaults between the alleged (student) perpetrator and the (student) plaintiff: We disagree with the Supreme Court’s determination that the defendants were only required to provide […]

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PLAINTIFF’S ACTION TO CANCEL AND DISCHARGE THE MORTGAGE ON THE GROUND THAT THE STATUTE OF LIMITATIONS FOR A FORECLOSURE ACTION HAD EXPIRED SHOULD HAVE BEEN DISMISSED, THE BANK UTTERLY REFUTED THE ALLEGATION WITH DOCUMENTS DEMONSTRATING THE DEBT HAD NEVER BEEN ACCELERATED; CLEAR EXPLANATION OF THE REQUIREMENTS FOR DISMISSAL BASED ON DOCUMENTARY EVIDENCE AND ACCELERATION OF A MORTGAGE DEBT (SECOND DEPT).

The Second Department, reversing Supreme Court, over an extensive dissent, determined that the bank’s (Deutsche Bank’s) motion to dismiss the plaintiff’s RPAPL article 15 action to cancel and discharge the mortgage should have been granted. The bank had started foreclosure proceedings in 2007 and plaintiff alleged in the complaint that the statute of limitations had […]

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OUT-OF-POSSESSION LANDLORD COULD NOT HAVE FORESEEN THAT INFANT PLAINTIFF WOULD MOVE LOGS STACKED AT THE SIDE OF THE PROPERTY AND THEN FALL WHEN JUMPING FROM LOG TO LOG, INFANT PLAINTIFF CREATED THE DANGEROUS CONDITION AND ASSUMED THE RISK (FIRST DEPT). ​

The First Department determined the out-of-possession landlord’s motion for summary judgment in this slip and fall case was properly granted. Infant plaintiff (Deandre) had moved some logs from the side of the property and was jumping from log to log when he fell: Defendant testified that he had had the tree cut down and the […]

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IT WAS REVERSIBLE ERROR TO ADMIT A WITNESS’S GRAND JURY TESTIMONY, THE WITNESS’S CLAIM HE COULD NOT REMEMBER THE EVENTS WAS NOT SO DAMAGING TO THE PEOPLE’S CASE AS TO ALLOW THE GRAND JURY EVIDENCE FOR IMPEACHMENT PURPOSES (FIRST DEPT).

The First Department, reversing defendant’s conviction, determined that admitting the grand jury testimony of a witness was reversible error. The witness’s testimony at trial that he couldn’t remember the events was not so damaging to the People’s case as to justify impeachment: The People concede that the trial court erred in admitting the grand jury […]

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THE CANDIDATE SIGNED THE SUBSCRIBING WITNESS STATEMENT WHICH INDICATED EACH VOTER SIGNED THE DESIGNATING PETITION IN HIS PRESENCE, WHICH WAS NOT THE CASE, DESIGNATING PETITION WAS PROPERLY INVALIDATED BASED UPON THE CANDIDATE’S PARTICIPATION IN FRAUDULENT ACTIVITY (THIRD DEPT).

The Third Department determined the designating petition was properly invalidated because there was clear and convincing evidence the candidate (Subedi) participated in fraudulent activity: Regarding the challenged signatures for which Subedi was the subscribing witness, it is undisputed that the voters did not subscribe their signatures in Subedi’s presence nor did they identify themselves to […]

PERSONS WHO SIGNED A DESIGNATING PETITION WHICH WAS DEEMED NULL AND VOID COULD VALIDLY SIGN A SUBSEQUENT OPPORTUNITY TO BALLOT PETITION (THIRD DEPT).

The Third Department, reversing the Board of Elections, determined that the persons who signed a designating petition which was deemed null and void could validly sign a subsequent opportunity to ballot petition: In general, when a qualified voter signs a designating petition and, on a subsequent date, signs an opportunity to ballot petition, the voter’s […]

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