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Entries by Bruce Freeman

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COVENANT TO BUILD A WALKWAY LINKING PARTS OF A RESIDENTIAL COMMUNITY RAN WITH THE LAND AND WAS THEREFORE ENFORCEABLE BY THE HOMEOWNERS ASSOCIATION AGAINST A SUBSEQUENT PURCHASER OF THE PROPERTY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the plaintiff homeowners association (HOA) was entitled to enforce an agreement made with the prior owners of the residential community to construct a walkway linking the newly constructed area to the existing areas of the community. The walkway covenant was deemed to run with the land: As […]

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BANK’S FAILURE TO SUBMIT EVIDENCE WHICH MET THE CRITERIA OF THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE REQUIRED DENIAL OF THE BANK’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION, THE BANK’S FAILURE TO COMPLY WITH THE RPAPL 1304 NOTICE AND MAILING CRITERIA REQUIRED THAT DEFENDANT’S MOTION FOR SUMMARY JUDGMENT BE GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank’s evidence in this foreclosure action did not meet the requirements of the business records exception to the hearsay rule and therefore the bank’s summary judgment motion should not have been granted in this foreclosure action. The court further held that defendant’s motion for summary judgment based […]

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DEBTOR’S LAWSUIT WAS DISMISSED BECAUSE IT WAS NOT LISTED AS AN ASSET IN THE BANKRUPTCY FILINGS, BANKRUPTCY TRUSTEE WAS ENTITLED TO RECOMMENCE THE SUIT PURSUANT TO CPLR 205 (a) WITHIN SIX MONTHS OF THE DISMISSAL (SECOND DEPT).

The Second Department determined the bankruptcy trustee could take advantage of CPLR 205 (a) to recommence a lawsuit within six months of the dismissal. The timely filed action was dismissed because the debtor did not list the suit as an asset in the bankruptcy filings: … [D]ismissal of the 2013 action was not based upon […]

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IN THIS FORECLOSURE ACTION THE MORTGAGE COMPANY DID NOT DEMONSTRATE STANDING WITH PROOF MEETING THE REQUIREMENTS OF THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff mortgage company did not demonstrate standing with proof meeting the requirements of the business records exception to the hearsay rule: In support of its motion, the plaintiff submitted the affidavit of Melissa Black, an employee of the plaintiff’s loan servicer, who alleged, based upon a review of […]

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CITY, AS THE OWNER OF THE MARINA WITH RIPARIAN RIGHTS, WAS ENTITLED TO EJECT DEFENDANTS WHO WERE USING AN INOPERABLE VESSEL AS A HOUSEBOAT DOCKED AT THE MARINA (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined that the city should have been granted summary judgment in this ejectment proceeding. The defendants were using an inoperable vessel as a houseboat docked at a city marina: To demonstrate entitlement to judgment on a cause of action for ejectment, a plaintiff must establish “(1) it is […]

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PLAINTIFF IN THIS SLIP AND FALL CASE ENTITLED TO SEVERANCE OF THE ACTION AGAINST THE PROPERTY OWNER, WHICH FILED FOR BANKRUPTCY, AND THE SNOW REMOVAL CONTRACTOR (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff in this slip and fall case was entitled to severance of the action against the property owner, Pathmark (supermarket), which filed for bankruptcy, from the action against the snow removal contractor, Peterman: The supermarket defendants filed for chapter 11 bankruptcy relief, resulting in an automatic stay pursuant […]

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PROOF OF MAILING REQUIREMENTS OF RPAPL 1304 NOT MET, BANK’S SUMMARY JUDGMENT MOTION IN THIS FORECLOSURE ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court in this foreclosure action, determined plaintiff bank did not present sufficient proof of compliance with the notice requirements in Real Property Actions and Proceedings Law (RPAPL) 1304: The plaintiff submitted the affidavit of Sherry Benight, an officer of the plaintiff’s loan servicer, Select Portfolio Servicing, Inc. (hereinafter SPS), stating […]

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DEFENDANT SOLE SHAREHOLDER OF DEFENDANT CORPORATION WAS NOT ENTITLED TO SUMMARY JUDGMENT ON THE ACTION AGAINST HIM PREMISED UPON PIERCING THE CORPORATE VEIL, THERE WERE QUESTIONS OF FACT WHETHER THE WARRANTY PROVISIONS OF THE CONTRACT WERE VIOLATED AND WHETHER DEFENDANT CORPORATION WAS STRIPPED OF ASSETS SUCH THAT IT COULD NOT MEET ITS CONTRACTUAL OBLIGATIONS (SECOND DEPT).

The Second Department, over a partial dissent, reversing (modifying) Supreme Court, determined that defendant Brookstein, the sole shareholder of corporate defendant DKM, was not entitled to summary judgment in the action against him based upon piercing the corporate veil: “The general rule, of course, is that a corporation exists independently of its owners, who are […]

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MOTION TO DISMISS THE NEGLIGENCE ACTION AGAINST DEFENDANT SECURITY COMPANY IN THIS THIRD PARTY ASSAULT CASE SHOULD NOT HAVE BEEN GRANTED, THE EVIDENCE SUBMITTED BY THE DEFENDANT DID NOT RULE OUT LIABILITY BASED UPON THE RELATIONSHIP BETWEEN THE DEFENDANT SECURITY COMPANY AND THE COMPANY PROVIDING SECURITY AT THE TIME OF THE ASSAULT (SECOND DEPT).

The Second Department determined defendant security company’s motion to dismiss the complaint should not have been granted in this third party assault case. The complaint alleged the security company’s negligence resulted in the murder of plaintiff’s decedent at an assisted living facility. The defendant alleged it did not provide security there at the time of […]

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DEFENDANT ENTITLED TO PERMISSIVE ADVERSE INFERENCE JURY INSTRUCTION BASED UPON THE PEOPLE’S LOSS OR DESTRUCTION OF EVIDENCE REQUESTED BY THE DEFENDANT (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined that the permissive adverse inference jury instruction should have been given because of the loss or destruction of evidence requested by the defendant: The defendant contends that the Supreme Court should have granted his request for a permissive adverse inference charge with respect to the People’s failure to […]

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