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Entries by Bruce Freeman

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THE FORECLOSURE ACTION BROUGHT IN 2011 WAS DISMISSED BECAUSE THE BANK FAILED TO COMPLY WITH THE NOTICE OF DEFAULT PROVISIONS IN THE MORTGAGE AGREEMENT; THEREFORE THE 2011 ACTION DID NOT ACCELERATE THE DEBT AND THE STATUTE OF LIMITATIONS FOR FORECLOSURE NEVER STARTED RUNNING (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the mortgage was never validly accelerated when the foreclosure proceeding was brought in 2011. The 2011 action was dismissed because the notice of default was not served in accordance with the mortgage agreement (a condition precedent to foreclosure). Because the debt was never accelerated in 2011, the statute […]

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HERE THE NEGLECT PROCEEDINGS WERE BROUGHT AGAINST FATHER WHO DID NOT LIVE WITH MOTHER AND THE CHILD; MOTHER WAS NOT A PARTY IN THE NEGLECT PROCEEDINGS; FAMILY COURT DID NOT HAVE THE AUTHORITY TO PLACE MOTHER UNDER THE SUPERVISION OF THE ADMINISTRATION FOR CHILDREN’S SERVICES (ACS) (SECOND DEPT).

The Second Department, reversing Family Court, in a full-fledged opinion by Justice Ventura, determined Family Court did not have statutory authority to place mother, who was not a respondent in the neglect proceeding, under the supervision of the Administration for Children’s Services (ACS) and direct that she cooperate with ACS. The neglect proceedings were brought […]

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ALTHOUGH FATHER FAILED TO APPEAR IN THE CUSTODY PROCEEDING, FAMILY COURT SHOULD HAVE HELD A HEARING AND MADE FINDINGS OF FACT; CUSTODY ORDER VACATED AND MATTER REMITTED (SECOND DEPT).

The Second Department, reversing Family Court, determined father’s motion to vacate the custody order should have been granted. Despite father’s failure to appear in this custody proceeding, Family Court should have held a hearing and made findings of fact in support of awarding custody to mother: “Although the determination of whether to relieve a party […]

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PLAINTIFF DID NOT SUFFER A “SERIOUS INJURY” WITHIN THE MEANING OF THE INSURANCE LAW IN THE UNDERLYING PEDESTRIAN-VEHICLE ACCIDENT CASE; THEREFORE PLAINTIFF COULD NOT HAVE SUCCEEDED ON THE MERITS OF THAT ACTION; DEFENDANT ATTORNEY WAS ENTITLED TO SUMMARY JUDGMENT DISMISSING THE INSTANT LEGAL MALPRACTICE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant attorney was entitled to dismissal of the legal malpractice action because plaintiff could not have succeeded in the underlying traffic accident case. Plaintiff, a pedestrian, was struck by a vehicle. The traffic-accident case was dismissed because plaintiff did not sustain a “serious injury” within the meaning […]

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ALTHOUGH THE PLAINTIFF BANK DID NOT INITIATE PROCEEDINGS TO TAKE A JUDGMENT WITHIN ONE YEAR OF DEFENDANTS’ DEFAULT IN THIS FORECLOSURE ACTION, THE DEFENDANTS HAD FILED AN UNTIMELY ANSWER WHICH WAIVED THE DEFENDANTS’ RIGHT TO SEEK DISMISSAL OF THE COMPLAINT PURSUANT TO CPLR 3215 (C) (SECOND DEPT). ​

The Second Department, reversing Supreme Court in this foreclosure action, determined the defendants waived the right to seek dismissal of the complaint pursuant to CPLR3215 (c) (based on the bank’s failure to take proceedings for the entry of a default judgment within one year) by submitting an untimely answer: In May 2016, the plaintiff commenced […]

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EVEN THOUGH THE BANK’S MOTION FOR AN ORDER OF REFERENCE WAS REJECTED AS DEFICIENT, THE MOTION CONSTITUTED INITIATING PROCEEDINGS FOR A DEFAULT JUDGMENT WITHIN ONE YEAR OF DEFENDANTS’ DEFAULT; THE BANK’S MOTION TO VACATE THE DISMISSAL OF THE COMPLAINT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank’s motion to vacate the dismissal of the foreclosure action should have been granted. The bank’s motion for an order of reference made within one year of defendant’s default was a sufficient step toward taking a default judgment within the meaning of CPLR 3215 (c), even though […]

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IT WAS ALLEGED A TEACHER SEXUALLY ABUSED PLAINTIFF STUDENT ONCE OR TWICE A WEEK FOR THREE YEARS ON SCHOOL GROUNDS, SOMETIMES FOLLOWED BY ABUSE OFF SCHOOL GROUNDS; THE NEGLIGENT SUPERVISION CAUSES OF ACTION SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the school’s motion for summary judgment in this Child Victims Act case should not have been granted. It was alleged plaintiff-student was sexually abused by a teacher once or twice a week for three years. Based on the frequency of the alleged abuse, the school did not demonstrate […]

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THE WARRANT REQUIRED THE SEIZED CELL PHONE BE “RETURNED TO THE COURT;” INSTEAD THE CELL PHONE WAS TURNED OVER TO A CYBERSECURITY CENTER WHICH CONDUCTED A FORENSIC EXAMINATION AND MEMORY EXTRACTION; DEFENSE COUNSEL’S FAILURE TO MOVE TO SUPPRESS THE INFORMATION GLEANED FROM THE CELL PHONE CONSTITUTED INEFFECTIVE ASSISTANCE; MANSLAUGHTER CONVICTION VACATED (FOURTH DEPT).

The Fourth Department determined defendant’s motion to vacate her manslaughter conviction on the ground of ineffective assistance of counsel should have been granted. The search of defendant’s cell phone far exceeded the scope of the warrant. The warrant required that the seized cell phone be “returned to the court.” Instead the phone was turned over […]

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THE FACT THAT PLAINTIFF SLIPPED AND FELL ON “BLACK ICE” DOES NOT SUPPORT THE CONCLUSION THE ICE WAS NOT VISIBLE; THIS SLIP AND FALL COMPLAINT SHOULD NOT HAVE BEEN DISMISSED ON THE GROUND DEFENDANT DID NOT HAVE CONSTRUCTIVE NOTICE OF THE CONDITION (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court in this slip and fall case, determined there was a question of fact whether the “black ice” in the parking lot was visible such that defendant had constructive notice of its presence: “To constitute constructive notice, a defect must be visible and apparent and it must exist for a […]

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HEARSAY ALONE IS NOT ENOUGH TO SUPPORT REVOCATION OF PROBATION (FOURTH DEPT).

The Fourth Department, vacating the declaration of delinquency, determined the hearsay testimony of a police investigation was not sufficient to prove defendant violated the terms and conditions of a probationary sentence: … [T]he evidence at the hearing that he committed a criminal offense while on probation consisted entirely of hearsay testimony from a police investigator. […]

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