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Entries by Bruce Freeman

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FAMILY COURT PROPERLY TRANSFERRED THIS DERIVATIVE NEGLECT PROCEEDING TO THE UNKECHAUG INDIAN NATION PURSUANT TO THE INDIAN CHILD WELFARE ACT (ICWA) (SECOND DEPT).

The Second Department determined Family Court properly transferred the derivative neglect proceeding to the Unkechaug Indian Nation pursuant to the Indian Child Welfare Act (ICWA): The ICWA provides that “the Indian custodian of the child and the Indian child’s tribe shall have a right to intervene at any point” in a proceeding to which the ICWA applies […]

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PETITION SEEKING A STAY OF ARBITRATION AND A FRAMED-ISSUE HEARING ON WHETHER THE TRAFFIC ACCIDENT WAS STAGED SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the petition to temporarily stay arbitration of the claim for uninsured motorist benefits pending a framed-issue hearing addressing whether the collision was an accident or intentional should have been granted. The insurer, Global, presented evidence the traffic accident involving an uninsured vehicle was staged. The injured passenger, […]

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ATTORNEY WHO DRAFTED THE 2005 WILL APPOINTING THE ATTORNEY AS EXECUTOR WAS REQUIRED TO HAVE THE TESTATOR ACKNOWLEDGE THE TESTATOR HAD BEEN INFORMED THAT FAILURE TO COMPLY WITH THE DISCLOSURE REQUIREMENTS WOULD RESULT IN THE ATTORNEY-EXECUTOR’S ENTITLEMENT TO ONLY ONE-HALF THE STATUTORY EXECUTOR’S COMMISSIONS (SECOND DEPT).

The Second Department, resolving a split among Surrogate’s Courts, determined that the attorney who drafted the 2005 will appointing himself as executor was required to have the testator sign an acknowledgment the testator had been informed that the failure to comply with statutory disclosure requirements would result in the attorney-executor being entitled to only one-half of […]

PETITION SEEKING TO INVALIDATE THE ORGANIZATIONAL MEETING OF THE SUFFOLK COUNTY COMMITTEE OF THE CONSERVATIVE PARTY SHOULD HAVE BEEN DENIED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the petition seeking to invalidate the organizational meeting of the Suffolk County Committee of the Conservative Party should have been denied. The decision is fact specific and deals with many Election Law procedural issues that cannot be fairly summarized here: … [W]e are mindful that “a court’s jurisdiction […]

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NOTE HOLDER’S COMPLIANCE WITH NOTICE REQUIREMENTS OF RPAPL 1304 NOT DEMONSTRATED, MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined respondent (the holder of the note) did not demonstrate compliance with the notice provisions of RPAPL 1304. Therefore respondent’s motion for summary judgment in this foreclosure action should not have been granted: “[P]roper service of RPAPL 1304 notice on the borrower or borrowers is a condition precedent to the […]

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NO PRIVATE RIGHT OF ACTION UNDER NEW YORK’S MENTAL HEALTH PARITY LAW (TIMOTHY’S LAW) (SECOND DEPT).

The Second Department determined that New York’s mental health parity law (Timothy’s Law, Insurance Law 3221(1)(5) and 4303(g)) did not create a private right of action over and above the administrative enforcement provisions. Plaintiff alleged the health insurance benefits administered by defendants were far more restrictive for mental health than for general medical claims: … […]

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IT WAS (HARMLESS) ERROR TO ALLOW THE ARRESTING OFFICER TO TESTIFY THAT DEFENDANT WAS DEPICTED IN THE VIDEOTAPE WHICH WAS BEING PLAYED (FIRST DEPT).

The First Department determined it was (harmless) error to fail to sustain defense counsel’s objection to the arresting officer’s unprompted identification testimony that the defendant was depicted in the videotape that was being played: The officer was not previously familiar with defendant, and there was no basis to conclude he was “more likely to correctly […]

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ABUTTING PROPERTY OWNER NOT RESPONSIBLE FOR TRIP AND FALL IN TREE WELL NEAR THE SIDEWALK, THE TREE WELL IS NOT UNDER THE PROPERTY OWNER’S CONTROL (FIRST DEPT).

The First Department determined defendant property owner’s (Val-Mac’s) motion for summary judgment in this sidewalk slip and fall case was properly granted. Plaintiff fell in a tree well near the sidewalk abutting defendant’s property: Plaintiff tripped and fell in a tree well as he walked on the sidewalk in front of Val-Mac’s property, which was […]

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PLAINTIFF WAS SHOT INSIDE DEFENDANT’S BUILDING, DEFENDANT LANDLORD DEMONSTRATED IT DID NOT HAVE NOTICE OF AN ALLEGED BROKEN LOCK, THE EVIDENCE DID NOT DEMONSTRATE THE ASSAILANT WAS AN INTRUDER AS OPPOSED TO AN INVITED GUEST, AND THERE WAS EVIDENCE PLAINTIFF WAS THE VICTIM OF A TARGETED ATTACK, DEFENDANT LANDLORD’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the NYC Housing Authority’s (NYCHA’s) motion for summary judgment should have been granted in this third-party assault case. Plaintiff was shot inside the building. Defendant demonstrated it did not have notice of an alleged broken lock which would have allowed an intruder to enter the building. And the […]

MISSING CHAIR IN FRONT OF A SLOT MACHINE IS OPEN AND OBVIOUS AND NONACTIONABLE, PLAINTIFF WAS INJURED WHEN SHE ATTEMPTED TO SIT IN FRONT OF A MACHINE WHERE THERE WAS NO CHAIR (FIRST DEPT).

The First Department determined the absence of a chair in front of a slot machine was open and obvious and nonactionable: … [P]laintiff was injured when she fell while attempting to sit down at a slot machine that did not have a chair. Defendants showed that the missing chair was an open and obvious condition […]

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