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Entries by Bruce Freeman

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FATHER WAS NEVER PROPERLY INFORMED OF HIS RIGHT TO COUNSEL IN THIS MAINTENANCE AND CHILD SUPPORT ENFORCEMENT PROCEEDING AND NEVER WAIVED THAT RIGHT, ORDER OF COMMITMENT REVERSED (SECOND DEPT).

The Second Department, reversing Family Court in this child support and maintenance arrears proceeding, determined that father was never properly advised of his right to counsel by the support magistrate. It was not sufficient that father was told the matter could be adjourned to allow him to speak to an attorney or that father could […]

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COMPLAINANT’S ACTUAL EMPLOYER WAS ADDED TO THE EMPLOYMENT DISCRIMINATION PROCEEDING MORE THAN ONE YEAR AFTER TERMINATION, THE RELATION-BACK DOCTRINE DID NOT APPLY, DISCRIMINATION FINDING ANNULLED (SECOND DEPT).

The Second Department, annulling the employment discrimination determination, held that the action against the employer, Food Corp., was untimely and the relation-back doctrine did not apply. Complainant had originally named Trade Fair as her employer and then added Food Corp. more than a year after her termination: Food Corp. does not dispute that the first prong of […]

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THE ACTUAL DIMENSIONS OF THE COOPERATIVE APARTMENT WERE SMALLER THAN THE DIMENSIONS DESCRIBED IN THE LISTING, THE LISTING COULD NOT BE DEEMED INCORPORATED BY REFERENCE INTO THE PURCHASE AGREEMENT, THE COMPLAINT ALLEGING BREACH OF CONTRACT, FRAUD AND DECEPTIVE BUSINESS PRACTICES PROPERLY DISMISSED (FIRST DEPT).

The First Department determined the misrepresentation of the dimensions of the cooperative apartment in the listing could not be deemed incorporated by reference into the purchase agreement. The complaint was therefore properly dismissed: … [P]laintiffs allege that defendants prepared a floor plan, which accompanied the listing for the unit at issue, that stated that the […]

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MOTION TO DEEM NOTICE OF CLAIM FILED ONE DAY LATE TIMELY SHOULD HAVE BEEN GRANTED (FIRST DEPT)

The First Department, reversing Supreme Court, determined petitioner’s motion to deem the notice of claim timely filed should have been granted even if the excuse for the delay was not reasonable. The notice of claim was one day late: CUCF [defendant City University Construction Fund] acquired actual notice of the essential facts constituting the claim […]

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MOTION TO AMEND COMPLAINT AND BILL OF PARTICULARS TO CHANGE THE DATE OF THE ALLEGED SLIP AND FALL PROPERLY DENIED (FIRST DEPT).

The First Department determined the motion to amend the complaint and bill of particulars in this slip and fall case was properly denied. Plaintiff sought to change the dare of the accident from October 12, 2012, to August 15, 2012: Plaintiff alleges that she slipped and fell on rainwater that came in through negligently maintained […]

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ALTHOUGH CPLR 2104 DOES NOT APPLY TO STIPULATIONS IN ADMINISTRATIVE PROCEEDINGS, THE STIPULATION SIGNED BY PLAINTIFF, IN WHICH HE AGREED TO RETIRE IN RETURN FOR THE CESSATION OF DISCIPLINARY PROCEEDINGS, WAS ENFORCEABLE UNDER CONTRACT PRINCIPLES DESPITE PLAINTIFF’S SUBSEQUENT CHANGE OF HEART (FIRST DEPT).

The First Department determined the stipulation signed by plaintiff teacher, who agreed to resign in return for discontinuing the disciplinary hearing, was binding under contract principles, despite the inapplicability of CPLR 2104 to administrative proceedings. After signing the stipulation, plaintiff changed his mind: In the stipulation, DOE (Department of Education] agreed to discontinue the disciplinary […]

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BECAUSE THE PETITIONERS CHOSE TO APPEAL THEIR TERMINATION FROM EMPLOYMENT AS CORRECTION OFFICERS TO THE NYC CIVIL SERVICE COMMISSION INSTEAD OF BRINGING AN ARTICLE 78, THE COURT’S REVIEW POWERS ARE EXTREMELY LIMITED, THE TERMINATION WAS UPHELD (FIRST DEPT).

The First Department determined the NYC Civil Service Commission (CSC) properly upheld the termination of  the petitioner correction officers for using excessive force against an inmate. The court noted that, because the petitioners chose to appeal the determination of the administrative law judge to the CSC, instead of bringing an Article 78, the court’s review powers […]

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EMPLOYEES OF SUBCONTRACTOR CAN SUE FOR THE PREVAILING WAGE REQUIRED BY LABOR LAW 220 AS THIRD PARTY BENEFICIARIES OF THE PRIME CONTRACT (FIRST DEPT).

The First Department affirmed the denial of defendant employer’s (SLSCO’s) motion to dismiss the plaintiff employees’ breach of contract complaint. The complaint alleged that SLSCO and the subcontractor, PMJ, which employed plaintiffs, breached the prime employment contract by failing to pay the prevailing wage for work done for the Department of Environmental Protection (DEP). The […]

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ENTERPRISE CORRUPTION CONVICTION NOT SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE OF DEFENDANT’S KNOWLEDGE OF THE EXISTENCE OF THE ENTERPRISE AND HIS INTENT TO PARTICIPATE IN AFFAIRS OF THE ENTERPRISE (CT APP).

The Court of Appeals, in a memorandum decision supplemented with an extensive concurring opinion, determined that the defendant’s conviction of enterprise corruption (Penal Law 460.20) was not supported by legally sufficient evidence: … [T]he proof elicited at trial was not legally sufficient to establish the elements of defendant’s knowledge of the existence of the subject […]

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